4. Sexuality and Law

Elucidations: Prev Next

There has been historical precedent to place legal restrictions on human behavior due to disgust reaction

Disgust §

• Rejection of something that is seen as a contaminant (useful in the context of feces, etc.). These are called the primary objects of disgust
• In all societies, it gets extended in practice to groups of people seen as ‘low’/‘dirty’
  • extending the attributes of primary objects of disgust to these people, e.g. separate drinking fountains for blacks

Historical theoretical justification §

• Lord Devlin: a society needs to be able to defend itself against intrusion/defilement.
  • Justifies making things illegal even if they cause no harm to others
  • His rival: John Stuart Mill who said only harm to others should matter
• More contemporarily, Leon Cass: disgust is a legitimate emotion which can sometimes guide us legitimately warn us of atrocity.
  • E.g. “torture” elicits disgust that rightly directs us away from it

An unreliable guide §

• When disgust is potent, we cannot rely on reasoning to give us respect.
• Gays/Lesbians depicted as weirdos/animals
• ‘Torture’ also elicits indignation, which is a more constructive feeling towards righting the wrong of torture (concede that disgust happens to be right on this one)
  • That is wrong and it better not happen again
  • But maybe indignation may be argued to already be ‘getting too close’ - dignifying the abhorrent act with the status of “an act that is wrong” - maybe rejecting uncritically is the proper treatment?
  • “We won’t look at that at all” is evasion of moral confrontation.
  • Both have cognitive content and are falliable
  • Disgust’s validity limited to primary objects - which actually do pose a danger.
• Juries to whom a murder is described in a more gory way are more likely to be harsher, even though this doesn’t always track how bad the homicide was / whether it was premeditated

Empathy §

• Need to imagine the other as fully human like ourselves
• Is this sufficient? Couldn’t a homophobe fairly imagine this but still conclude the other person is wrong?
  • Nussbaum: Certainly. Empathy is not sufficient for compassion.
  • perhaps not even necessary, e.g. compassion towards actual animals we cannot empathize with.

Application to marriage §

• Should government be involved in marriage?
  • Marriage has three aspects:
    1. Religious: state shouldn’t be involved (obviously)
    2. Material: benefits given to certain relationships (civil unions sufficient)
    3. Stuff in between: marriage is important because it signals some sort of societal approval of the act
    • Nussbaum doubts that this is really as true as proponents claim:
      • We don’t think of the state as supporting the N’th marriage of some celebrity
      • Extremely low bar in most states for being able to officiate a marriage
  • Civil unions analogous to transracial marriage:
    • People had to fight to not give this a different term since they truly believe it is equal

Application to privacy §

• Three dimensions that get conflated:
  • Informational: the private is secret
  • Spatial: a private place, like the home
  • Decisional: what is private is yours to design
• Example: pornography is legal, but only in your home. Or a court ruling that gay sex was legal unclear about whether it was merely because it was demonstrated in private that the homosexuality should be condoned.
• Mill: self-regarding impact principle
  • What impact does this have on non-consenting strangers
  • Could recover our intuitions (the pornography has an impact on other people, acts in sex clubs that you have to voluntarily enter).
• We should avoid the word ‘privacy’ because it’s such a nest of confusions.

danger (for which disgust is just one piece of ‘evidence’), so it’s deflecting the main argument. - A couple examples of disgust getting it wrong not convincing. - Could come up with examples of indignation getting it wrong according to Nussbaum herself. - Hypothetical: suppose Native Americans were disgusted by European settlers and were motivated to unify and reject the invasion. Wouldn’t this have saved their society? Was a (counterfactual) stronger disgust reaction the only plausible hope for this happening? - Is not eliciting disgust in nonconsenting strangers bad by Mill’s principle? Couldn’t there exist a country whose population is so vicerally disgusted by homosexuality that, in that country, it truly is wrong to have gay marriage? (e.g. Islamic country) )