Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, February 23, 2009

Martha Nussbaum, the Scarpa Conference, and Disgust

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.


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