Regular MOJ reader Marc DeGirolami (who also attended the Scarpa Conference) has the following contribution in response my recent post regarding Professor Nussbaum's and Professor Stone's remarks regarding same-sex marriage:
I noticed your comment about Professor Nussbaum's comment, late in the day, that the only (or perhaps the best) way to explain opposition to homosexual marriage is by understanding it as a manifestation of disgust or the crude fear of "contamination" by those on the other side of the issue.
In reacting to Professor Nussbaum's remarks, you take offense, and I can certainly understand why. Professor Nussbaum meant the characterization as a denigration -- the claim being that if one is opposed to homosexual marriage, the only conceivable reason must be something as irrational as disgust, since the arguments against homosexual marriage are so weak as not to be taken seriously.
But I wonder whether, quite apart from the merits of this particular question, you both are shortchanging the value of disgust. Disgust, like shame, can be quite worthwhile. This was essentially the point made in a review of Professor Nussbaum's book, "Hiding From Humanity: Disgust, Shame, and the Law" written a few years back by John Kekes in the publication, Mind. There are types of behaviors about which we feel disgust for entirely rational reasons -- they richly deserve the feelings of disgust that they engender because they violate very basic social and civilizational norms. It's entirely appropriate to feel disgusted by a murder, or an act of terrorism, or an act of incest, pedophilia, or bestiality (some of these are examples given by Kekes, to which I would add torture, cruelty and the sadistic humiliation of others, and much other behavior). Not all feelings of disgust are like this, of course, but it won't do to trot out "disgust" any time you disagree with someone else's position on the question of the day. The reason that it is unsatisfying to make this move is not that disgust is invariably an irrational reaction and that by leveling the charge of disgust you are failing to treat the other person and his/her views with "respect" (a subject of at times overpowering interest at the conference). Instead, the "disgust" move doesn't work because disgust may well be quite rational -- indeed, it may be precisely the right thing to feel -- and it remains to explain why it is not so in the given situation.
To be clear, I should state that none of this is meant remotely to suggest that one ought to (or that I) feel disgust (or shame) about homosexual marriage. In point of fact, I emphatically do not. But I do think that there is a considerable class of cases in which both disgust and shame are precisely the appropriate reaction. An accusation of disgust in such contexts, even if intended as a slight, should be met with cheerful, even vigorous, assent.
Monday, February 23, 2009
Steve Shiffrin provided a nice summary of the Scarpa Conference that took place last Thursday at the Villanova Law School. (It was great to see Steve together with a number of other fellow MOJers such as Michael Scaperlanda and Rick Garnett!) MOJer Patrick Brennan is certainly to be congratulated for organizing this splendid event, the title of which was borrowed from Martha Nussbaum’s book Liberty of Conscience. Fittingly enough, Professor Nussbaum, delivered the key note address and responded to the other conference speakers.
One of the respondents was Nussbaum’s colleague at the University of Chicago, Geoff Stone. Professor Stone claimed that although some arguments against same-sex marriage may appear to be secular in nature, all such arguments are in fact ineluctably religious. Indeed, as Professor Stone pointedly told one student who raised objection to Stone’s claim, if one digs deep enough, one will find lurking behind all such arguments, the dark shadow of intolerant religious belief – and if one does not reach this conclusion then one is either “a fool or a knave.” Stone admitted that it would often be difficult to prove that religious intolerance was in fact the true motivation at work, but he assured the audience that this motivation was nevertheless always present and operative.
In her remarks at the end of the day, Professor Nussbaum expressed what appeared to be a sincere interest in engaging in serious conversation about same-sex marriage. In replying to Professor Stone’s remarks, however, she said that she would reach the same conclusion as Stone but by a different route. Nussbaum claimed that opposition to same-sex marriage was not based on religious premises so much as a visceral reaction of “disgust” to the very idea of same-sex relations. That is, notwithstanding the ostensibly moral and sociological arguments made against the legal recognition of same-sex marriage, Nussbaum confidently asserted that what really lies behind this opposition is a sense of revulsion toward the physical act of same-sex relations, an act which “defiles” the human body such that it is cause for “disgust.”
What I find disgusting is the notion that these sorts of claims are what pass for serious argument today. Sadly, both Nussbaum and Stone’s strategies for debate demonstrate an approach that has become all too common in the public square, and even in the academy. Rather than engage the substance of an opponent’s argument, one imagines the true motive behind the position asserted. This motive invariably proves to be illegitimate so that the opposing point of view can be readily dismissed.
One hopes that Professor Nussbaum is sincere in her desire to have a serious and engaging conversation about same-sex marriage. (There are, it should be noted, advocates on both sides of the issue who do not want to have such a conversation – individuals and groups who would prefer to vilify and caricature the opposition so long as such methods resulted in political victory). A genuinely serious conversation about this or any other similarly sensitive topic must begin with an effort to bring together people who approach the subject from very different starting points.
Let me suggest to both Nussbaum and Stone, however, that if they do wish to have such a conversation, they would be well advised not to begin the process by calling into question the intelligence and good faith of their opponents. Indeed, the place to begin is not with name calling (“fool or a knave”) or with amateurish efforts to psychoanalyze the true motives at work in the mind of one’s opponent. To reduce our public discourse to the employment of these sorts of strategies would truly be cause for disgust.
Rick says, “Is the rule simply that "the government may never say, 'we are doing this because a particular religious authority has commanded it'?" If so, fine. Whatever the Establishment Clause means, really, I'm happy to go along with the proposal that it should mean this. But, I assume that instances of such proclamations are going to be few and far between. What about "we are not going to fund embryo-destructive research because such research is inconsistent with the dignity of the human person, properly understood"? Such a statement says nothing about "religious authority". What would Steve S. say to, say, Geof Stone, who believes (if I remember correctly) that such a statement can only be based on religion, and so the policy for which it is offered is unconstitutional?
The short answer is I do not agree with Geof Stone. Bans on embryo-destructive research or gay marriage do not violate the Establishment Clause (the latter was the main issue in his talk) though a ban of the latter raises questions under other clauses. (I assume that much of the Utah penal code and the Civil Rights Act of 1964 proceeded from religious premises of the citizenry, but this does not make such legislation unconstitutional). On the other hand, when government decides to display the Ten Commandments, the very selection of which version to display is itself a theological act which should be no part of the govrnment’s business. I agree with Rick though that government forays into the theological are by no means typical.
