Wednesday, February 23, 2011

A Legal Movement Towards Full Marriage Equality

The Pursuit of Harpyness has praise for what sounds like an important book by Martha C Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law. The book and the review both support full marriage equality and the review cites the need for solidarity.

The reviewer notes that people who are disturbed by a given sexual activity should not continue to think about it (presumably, if they are unlikely to get over their disgust).

Yet this doesn’t seem possible for some folks, who insist that the mere possibility of someone doing a sexual act that they think is “gross” violates them personally - and somehow contaminates our shared civic culture and public spaces in some ineffable way. Because of this feeling of threat and contamination, they try - and often succeed, particularly here in the United States - in passing laws which circumscribe the sexual rights of certain segments of the population.

They become sex police.

Nussbaum’s brief volume takes us on a whirlwind tour of the history of constitutional law as it relates to human sexuality, with a particular focus on the rights of gay and lesbian Americans - though the implications of her argument can be generalized out to consider the sexual practices of all citizens. Nussbaum’s goal is to sketch out the historic rationale for laws grounded in disgust and show that these arguments are extremely weak as a basis for denying certain groups fundamental and constitutionally-protected rights (such as the right to engage in consensual sexual activities with the partners of their choice, the right to marry, and the right to engage in commercial sexual activities).

Sounds like a great read. The review goes on to talk about the long tradition in the US of recognizing that it is respect for persons that has compelled everything from religious tolerance onward.

From this basis of understanding concerning the Constitutional right to equal protection for individual liberty, Nussbaum argues that we can - and must, Constitutionally-speaking - protect the right of people to do things (consensually and privately … and in some cases, publicly) which we find morally abhorrent and physically disgusting.

Like I’ve said before, if you don’t want to marry someone, you don’t have to. But if someone else wants to, they should be allowed. The review then calls out those who throw others under the bus instead of expressing solidarity….

One thing I particularly appreciated about From Disgust to Humanity is Nussbaum’s willingness to discuss, however briefly, the legality of sexually-intimate relationships (and even marriages) that go beyond the two-consenting-adults model. All too often, proponents of same-sex marriage seek to distance themselves from associations with the legalization of other non-normative relationships. Yet Nussbaum points out that the legal arguments separating out two-person unions from other types of unions are “extremely weak.”

The book doesn’t leave out the consanguineous lovers, either.

”Regulations on incestuous unions have also typically been thought to be reasonable exercises of state power, although, here again, the state interests have been defined very vaguely. The interest in preventing child abuse would justify a ban on most cases of parent-child incest, but it’s unclear that there is any strong state interest that should block adult brothers and sisters from marrying. (The health risk involved is not greater than in many cases where marriage is permitted.)”

Adults should be allowed to marry each other, even if one of them is a parent to the other. Back to the solidarity thing by the reviewer…

I realize there are strategic reasons for the marriage equality folks to emphasize that gay and lesbian couples aren’t attempting to radically alter marriage in scary, unknown ways - the argument that anti-gay marriage folks routinely make. Yet every time I hear the “of course same-sex marriage won’t lead to polygamy!” argument I wince because of the poly relationships I know that just got kicked to the curb by queer folks who, you would think!, would be natural allies. And while I know incest seems, to the majority of people, a physically repulsive concept, Nussbaum is right in arguing that disgust alone is not a justifiable reason to outlaw a behavior that does not do demonstrable harm.

Adults should be allowed to exercise their rights to love, sex, and marriage with any consenting adult, even if someone finds it disgusting. Participation is voluntary.

And to those ends, there is breaking news that US President Obama is letting DOMA (Denial of Marriage Act) die, which will allow the federal government to recognize the marriages of some same-sex couples. Based in part on that, lawyers have asked a court to lift its hold on the a lower court's Prop H8 verdict to allow (some) same-sex couples to marry in California. Congratulations to all same-sex couples who will benefit from today's move by Obama. It would be great if same-sex triads could also marry, or two sisters. But we will get there.
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