Vietnam: A Television History; Interview with Frank Snepp, 1981

Professor Nussbaum received her master's degree in Ph.D. here at Harvard and she has taught at Harvard Brown and Oxford universities. She is currently the Ernst fry and distinguished service professor of law on ethics which is and encompasses work in the Philosophy Department Law School and divinity school at the University of Chicago. She has written many books on various aspects of ethics moral philosophy and political philosophy including cultivating humanity sex sex and social justice hiding from humanity and liberty of conscience. Her work has won her numerous awards including the Book Award for the North American Society for social philosophy for her book Sex and social justice the American philosophy philosophical societies Henry M. Phillips prize for jurisprudence and over 30 honorary degrees. Professor Nusbaum His newest book from disgust to humanity explores how an emotion discussed has been politicized as an argument for legal discrimination against gay and lesbian citizens. A recent review in the San Francisco Chronicle called Professor Nusbaum a bracing force

full rhetorician and the book a cogent and politically charged case against the unconstitutional legal arguments that have inhibited the privacy marriage and full civil rights of gays and lesbians in the United States. And now please join me in all coming professor and Martha Nussbaum. Thank you. Will It's really wonderful to see so many people hoping that people will come in to give room for other people to come. What I'm going to do now is to give a little bit of a sense of the overall idea of the book and then focus on arguments about same sex marriage. I knew that this was the path I wanted said a young gay man to sociologist rich 7 Williams about his early sexual experiences with other male teens. And I knew that I was on it. I knew that some people could sort of experience who I was and I knew that other people would think of it as being pretty disgusting.

This book although concerned with abstract issues of constitutional law is essentially about the divide that teens saw before him between people who can sort of experience what a gay teenager feels. And people who simply think of those desires and ultimately the people themselves as being pretty disgusting. For a long time our society like many others has confronted same sex orientations and acts with the politics of disgust as many people react to the uncomfortable presence of lesbians and gay men with a deeper version akin to that which they take to be inspired by bodily waste 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. Partisans of the politics of disgust can barely stand to think about what the teenager did with his friends they say oh that stuff makes me want to throw up and turn away from the reality of gay life as

from a contaminant to the body politic. Although this political approach has lost some ground in recent years it continues to influence the way many people think. Discussed so described seems pretty nasty. A fundamental refusal of another person's full humanity. One might therefore think it just obviously a bad basis for law making in a pluralistic society. Disgust however has had some highly respectable and influential defenders in the law in Britain in the 1980s. Lord Patrick Devlin argued that the disgust of an average member of society was a sufficient reason to make a practice illegal even if it was consensual and cause no harm to third parties he applied his conclusion directly to and in fact his whole thing was inspired by the Wolfenden commission's report which had urged the decriminalization of same sex acts which of course he strongly opposed. He argued that British society would decay

from within if it did not make law in response to its members feelings of disgust. More recently in the U.S. Leon Kass of the University of Chicago and until recently the head of President Bush's National Council on Bioethics argues that repugnance and he sometimes uses the word repugnant Sometimes the word discussed has an inherent wisdom says Cass It's a device implanted in our personalities to steer us away from disastrous and destructive choices like Devlin CAS concludes that disgust is a sufficient reason to ban a practice that causes no harm to non-consenting parties. Nor of course are these positions merely academic. They're in tune with widespread social forces. In recent years segments of the Christian right openly practice a politics based on disgust depicting the sexual practices of lesbians and especially I think of gay men as vile and revolting. They suggest that such

practices contaminate American society producing decay and degeneration like Cason devil and they believe that disgust is a reliable guide to law making. Although the influence of such appeals peaked perhaps in the 1980s and 90s and has since been declining the politics of disgust continues to exercise influence often in underground and unstated ways. So we need to understand why it's not a good approach to politics and law in a democratic society. The politics of disgust is profoundly at odds with the very idea of a society based on the equality of all citizens in which all have an equal right to the protection of the laws. It says that the mere fact you happen to make me feel strong negative emotions is reason enough for me to treat you as a social outcast denying you some of your most basic entitlements as a citizen. The US Supreme Court in Romer vs. Evans held that legal deference to that

sort of animus as they called it violates the most basic idea of the equal protection of the laws. It also violates a fundamental paradigm of public rationality. Laws made in response to such animists lack they say a rational basis. Despite these legal setbacks in recent years the politics of disgust is alive and well as many groups aggressively depict same sex practices in such a way as to arouse revulsion and then draw on that reaction when campaigning against the legalization of same sex marriage or nondiscrimination laws. Such appeals are often seen as not politically correct today so other arguments are put forward. However discussed has not gone away it has just gone underground. Now discussed has two opponents today. Each I think increasingly powerful in social political and even legal life. Respect and sympathy the idea of

equal respect for persons surely a key concept through the history of the American democracy combined with a high evaluation of personal liberty suggests to many citizens that even when they don't think well of someone's intimate personal choices they should give them space to make them so long as they don't trample on other people's rights. Such a politics of equal respect and equal liberty has long been our norm in the area of religion where we're used to the idea that we have to learn to live on terms with respect with people whose choices we may not like or we may even think very bad. And to the related idea that such deeply meaningful personal choices require the protection for us all of spheres of personal liberty. The object of respect is the person not the person's actions but respecting one's fellow citizens as equals. A long tradition holds tradition about religion requires seeing them as choosers and seekers who need a wide space of Liberty around them whether they use that

liberty the way the majority wants them to or not so long as they don't trample on the rights of others. Many people and myself included see sexual orientation as similar a characteristic intimately connected with a person's search for a meaningful life and therefore something whose abridgment or legal restriction can inflict a profound damage to the very idea of equal respect. The gay teenager remember depicted by the seven Williams needs and deserves equal respect and a sphere of liberty equal to that enjoyed by others before he's likely to get these things however something else has to be present in our world as his perceptive comment about other people's reactions suggests namely the capacity to imagine his experience and that of other lesbian and gay citizens discussed relies on moral of to snus it's possible to see another human being as a slimy slug or a piece of trash. Only if one has never made a serious good

faith attempt to see the world through that person's eyes or experience that person's feelings. Humanity does not automatically reveal itself to strangers. No placard hung on the front of a fellow citizen announces that this one is a full fledged human being and not a piece of trash. Seeing the shape of a human being in front of us we always have choices to make. Will we impute full equal humanity to that shape or something less. Only by imagining how the world could look through that person's eyes. Does one ever get to the point of seeing the other person as a someone and not a something. Now I know there I may seem to have moved very far from constitutional law but but in the book I argue that actually it's of the greatest relevance to constitutional law because a lot of our failings in this area of law have been failings of the imagination and the move from Bowers or says Hardwick where the practices of gays and lesbians are depicted as something quite completely different from that which straight people are pursuing and

can't even imagine what it might be. To Lawrence where it's just made clear that their purses and purposes are similar to the purposes of people who seek opposite sex partners and that all are human and all require spheres of liberty so that the movement I think is crucially a movement of the imagination. Now what I do in the book is I start with an investigation of. Discussed in the politics of disgust and then move through four areas of law. First the history of sodomy laws in the history of the final collapse of sodomy laws then the nondiscrimination issue and here looking at the amendment two in Colorado and that trial in which actually I was an expert witness so that bench trial I talk about a little bit but then as it moved to the Supreme Court very different arguments were used and the but eventually the propaganda based on discussed was soundly repudiated

by the Supreme Court. Then the chapter on same sex marriage of which a bit as shortly and then a final chapter on public sex sex clubs and the whole question of how the. If public private distinction which I think is a very confused and multiple and very ambiguous distinction has messed up our thinking in this area. So I'm happy to talk about that in the question period but now to same sex marriage where I think you'll see ultimately that the politics of discussed surfaces. So what are the prominent arguments against same sex marriage as we examine them. We have to keep two questions firmly in mind. First does each argument really justify legal restrictions on same sex marriage or only some people's attitudes of moral and religious disapproval. We live in a country in which people have a wide range of different religious and secular beliefs. And as I said we

agree in respecting the space within which people pursue those beliefs. We don't however agree that those beliefs all by themselves are sufficient grounds for legal regulation. Typically we understand that some arguments including some but not all moral arguments are public arguments bearing on the lives of all citizens in a pluralistic society and others are simply internal religious arguments. Thus Orthodox Jews are poor the eating of pork but few if any would think that this religiously grounded apartments is a reason to make pork illegal for all citizens. The prohibition rests on religious texts and doctrines that not all citizens embrace. And it can't be translated into a public argument. The people of all religions can accept. Similarly in this case we have to ask whether the arguments against same sex marriage are expressed or could be expressed in a neutral and sharable language or only in a sectarian and doctrinal language. If the arguments are moral rather than

doctrinal they begin they begin better they look better at first but we still have to ask whether the moral values involved are compatible with core values of a society dedicated to giving all citizens the equal protection of the laws. Many legal aspects of our history of racial and gender based discrimination were defended by what seem to be secular moral arguments. But that did not insulate them from constitutional scrutiny. And then the second thing we have to ask is whether each argument really justifies its conclusion or whether there's reason to see the argument as a rationalization of some deeper sort of anxiety or aversion animus to use the language of rumor. All right so the first and most common objection to same sex marriage is that it's immoral and unnatural. Similar arguments were widespread in the debate about interracial marriage and in both cases those arguments are typically made in a sectarian and doctrinal

way referring to religious texts and he mis adjudication judges for example cited the alleged will of God in keeping the races apart. In fact the Supreme Court of Virginia in a case that ultimately led to the overthrow of those laws said that Almighty God had placed the races on separate continents and showed that his will was that the races should not mix well. So it's difficult to cast arguments like that in a form that could be accepted by citizens whose religion teaches something different. They then I think this is true simile of the idea that same sex marriage is immoral and unnatural. These arguments look like Jewish arguments against the eating of pork. Good reasons for members of some religions not to engage in same sex marriage but not sufficient reasons to make it illegal in a pluralistic society. A second objection and perhaps it's the one most often heard today insists that the main purpose of state sponsored marriage is procreation and the rearing of children. Well protecting an institution

that serves those important purposes is a legitimate public interest. And so there is a legitimate public interest in supporting potentially procreative marriages. Does this mean that there is also a public interest in restricting marriage only to those cases where there may be procreation. This is certainly less clear. It is not clear that we have ever thought those important purposes best served by restricting marriage in that way. If we ever did think like this we certainly haven't done anything about it. We've never limited marriage to the fertile or even those of an age to be fertile. People who don't even meet each other prisoners serving life terms without prospect of parole have been held to have a fundamental constitutional right to marry and those opinions explicitly state that they won't ever meet each other and well if they should by chance ever be able to consummate the marriage all that would be an additional thing. But it wasn't what their right to marry was based on. So it's very difficult in terms of the state's

interest in procreation to explain why the marriage of two heterosexual 70 year olds should be permitted and not to mention those life term prisoners. And the marriage of two men or two women should be forbidden. All the more since so many same sex couples do have and raise children. As it stands then the procreation argument looks two faced. Approving and heterosexuals what it refuses to tolerate in same sex couples. Sometimes this argument is put a little bit differently. Marriage the objector says is about the protection of children and we all know don't we that children do best in a home with one mother and one father. So there is a legitimate public interest in supporting an institution that fulfills that purpose. Well put it this way about the protection of children this argument cites a legitimate public reason to favor and support heterosexual marriage. Though of course it's less clear why it would give a reason to restrict marriage to those sorts of cases. It's main problem however is with the

facts. Again and again psychological studies have shown that children do best when they have love and support and it does appear there is some evidence that two parent households do better at that job than single parent households for obvious reasons of economic stress. There's no evidence however that opposite sex couples do better than same sex couples. There's a widespread feeling that this just can't be right that living in an immoral atmosphere must be bad for children. But when the welfare of children is defined in a neutral manner not in a religiously inflected manner there is in fact no difference. The third argument is that by conferring state approval on something that many people believe to be evil same sex marriage will force those people to bless or approve of that thing thus violating their conscience. Now this argument was actually made by a person whom I deeply respect a law professor Charles Fried from Harvard Law School in his book Modern Liberty which is an excellent book

and it's a book which strongly assails the sodomy laws and defends spheres of Liberty around each person. So it's an interesting thing that free draws the line at same sex marriage and he does it because of this idea of enforced approval. So what precisely is Fried's argument here. Fried is not suggesting that the recognition of same sex marriage would violate the free exercise clause of the First Amendment. And I think that would be a perfectly impossible position to take given the precedence. Presumably then his position is that the state has a legitimate interest in banning same sex marriage just on the grounds that it offends many religious believers. Now this argument contains many difficulties and I have to say that there's a footnote that raises alarm in me where Fareed says that even to think about ending the sodomy laws we need to stop ourselves from thinking about the sex acts performed by gays and lesbians.

Why do we have to do that. Well I think there is so so so that the idea that this gust is in there in this do somewhere is certainly suggested by that. But anyway. All right so first the argument I think raises in the Salish McLaws problem because religions in America vary greatly in their attitudes to same sex marriage. My own denomination Reform Judaism has long approved of and practice same sex marriage so does Conservative Judaism. And of course other religions have internal splits and still others might be strongly opposed but so there's this great variation and the state following Fried's argument would be siding with one group of believers against another. More generally there are a lot of things that a modern state does that people deeply dislike often on religious grounds. Public education teaches many things that religious parents are poor such as the theory of evolution and the equality of women. And of course the courts have been full of cases involving those but on the whole the religious

parents have not been able to shoehorn out the content just because it offends them. Public health regulations license butchers who cut up pigs for human consumption. Jews don't want to be associated with that practice. But nobody believes that Jews have the right to ask that the state end this practice for everyone. The Old Order Amish don't want their children to attend public school past age 14. Well. The State respects that choice for Amish children and even a louse in the Wisconsin vs. Yoder case that those parents may break a law that applies to everyone else. But of course nobody would dream of thinking that the Amish have a right to demand that no children go to school beyond age 14. Part of life in a pluralistic society the values the non-establishment of religion is an attitude of Live and Let Live. Whenever we see a nation that does allow the imposition of some religiously motivated preferences on all citizens

as with some Israeli laws limiting activity on the Sabbath and as with Indian laws prohibiting the slaughter of cows we see a country that has a religious establishment de jure A or de facto. We've chosen not to take that route and I think our choice was a wise one. To the extent that we do choose work days holidays and so on they coincide with the preferences of the majority. We bend over backwards to be sensitive to the difficulties that this may create for minorities and to give them escape patches from those difficulties. A fourth argument which again cites a legitimate public purpose focuses on the difficulties that traditional marriage seems to be facing in our society pointing to rising divorce rates and evidence the children are being damaged by lack of parental support. People say we need to defend traditional marriage not to undermine it by opening the institution to people who don't share its traditional purposes. Well we could begin by

contesting this characterization of same sex couples in large numbers they do have and raise children. Marriage for them as for other parents provides a clear framework of entitlements and responsibilities as well as security legitimacy and social standing for their children. In fact the states that have legalized same sex marriage Massachusetts Connecticut and now Iowa have among the lowest divorce rates in the nation. And Massachusetts data show that that rate has not been rising over time. We might also pause before granting that an increase in the divorce rate signals social degeneration often in the past women stayed married enduring neglect and even abuse because they had no marketable skills and no employment options. But OK let's stay off that and just concede for the sake of the argument that there is a social problem. What then about the claim that legalizing same sex marriage would undermine the effort to defend or protect traditional marriage. If American

society really wants to defend traditional marriage as it is certainly entitled to do and probably ought to do many policies suggest themselves Family and Medical Leave drug and alcohol counseling on demand generous support in health policies for marital counseling and mental health treatment strengthening laws against domestic violence and enforcing them better employment counseling and financial support for those under stress during the present economic crisis. And of course tighter enforcement of child support laws such measures have a clear relationship to the stresses and strains facing traditional marriage. The prohibition of same sex marriage does not. If we were to study heterosexual divorces we would be unlikely to find even a single case in which the parties felt that the primary factor leading to their divorce was the availability of marriage to same sex couples. Divorce is usually an intimate personal matter bearing on the nature of the marital relationship.

The objector at this point typically makes one further move. The very recognition of same sex marriage as on a par with traditional marriage demeans or debases traditional marriage. What's being said it seems is something like the claim that including in the Hall of Fame baseball players who are known to use steroids cheapens that honor and Sully's the achievements of the athletes who are already in the hole of Fame. So in general the recognition of a kind of low level or cheating contender for an honor cheapens or Sully's that honor. I think that's the kind of argument that people are trying to make when they say these things that. Recognition of same sex marriage defiles traditional marriage and so on. So how should we evaluate that argument. Well first of all we should challenge it on the facts. Same sex couples are not like cheating athletes or at least no more so than heterosexual

couples. They want to get married for reasons very similar to those of heterosexuals who express love or commitment to gay and religious sanctification for their union to obtain a package of civil benefits and often to have or raise children. Traditional marriage has its share of creeps. And there are no doubt same sex creeps as well. But the existence of creeps among heterosexuals has never stopped the state from marrying heterosexuals. Nor do people talk or think that way. I've never heard even one person say that the willingness of the state to marry Britney Spears or O.J. Simpson cheapens or Sallys their own heterosexual marriage. But somehow without knowing anything at all about the character and intentions of the same sex couple down the street they do think that their own marriages would be sullied by public recognition of that union. If the proposal were to restrict marriage to worthy people who have passed a character test it would at least be consistent though I think very few people would really defend

such an intrusive regime. What's clear is that those who make this argument don't fret about the way in which immoral or unworthy heterosexuals may sully the institution of marriage or lower its value. And given that they don't worry about that and given that they don't want to allow marriage for gays and lesbians who have demonstrated their fine character it's difficult to take this argument at face value. The idea that same sex unions will defile traditional marriage I think can't be understood in the end without moving down to the terrain of disgust and contamination. The only distinction between the class of heterosexuals and the class of gays and lesbians they can possibly explain the difference in people's reaction is that the sex acts of the former do not discuss the majority in the sex acts of the latter do. The thought must be the two associate traditional marriage with the sex acts of same sex couples is to defile or contaminated

in much the way that eating food served by a doll it used to be taken by many people in India. To contaminate the high caste body nothing short of a primitive idea of stigma and taint can explain the widespread feeling that same sex marriage defiles are contaminates straight marriage. If we're looking for a historical parallel to the anxieties associated with same sex marriage we can find it in the history of debates about misogyny nation at the time of Loving versus Virginia which wasn't until 1967 shockingly late enough to overturn the laws against interracial marriage at that time. Sixteen states both prohibited and punished marriages across racial lines. Furthermore all those states were required to honor divorces performed in other states with more lenient divorce regimes than their own. This saw the case of this intonation was different. That was not the case with interracial marriage so it's the one parallel to the Defense of Marriage Act in other words states that had laws

against miss a generation refused to recognize marriages between blacks and whites legally contracted elsewhere and often even criminalize those marriages. The Supreme Court case that brought about the overturning of the anti-miscegenation laws. Loving versus Virginia was just such a case. Mildred Jeter African-American and Richard Loving quite lovely name for this case got married in the District of Columbia in 1058 their marriage was not recognized as legal in their home state of Virginia. When they returned they were arrested in the middle of the night in their own bedroom with a framed copy of their marriage certificate hanging over their bet. They were then sentenced to one year in prison but they were told that if they left the state for 25 years the sentence could be waived. So left the state and then they began the litigation that led 9 years later to the landmark decision. Like same sex marriages across racial unions were opposed with a variety of arguments both political and theological. In

hindsight however we can easily see that discussed was it work. Indeed it did not hide its hand. The idea of racial purity was proudly proclaimed. For example in the racial integrity Act of 1924 in Virginia and ideas of taint and dirt and contamination were ubiquitous. If people felt disgusted and contaminated by the very thought that an African-American had drunk from the same public drinking fountain or going swimming in the same public swimming pool or use the same toilet or the same plates and glasses all widely held southern views and I should also say views that my father who was born in Macon Georgia but practiced law for most of his life in Philadelphia maintained until the very end of his life and kept trying to. Push my way and he really did believe this fine lawyer that if an African-American person a drunk from a glass you could not drink from that glass ever again you just had to throw that away.

So you know the grip of these magical views about disgust and contamination is very deep. So if that's all true about swimming and drinking and so on you can see that the very thought of sex and marriage between black and white would have carried a powerful freight of revulsion. This Supreme Court concluded that such ideas of racial stigma and taint were the only ideas that really supported these laws whatever else people said quote There is patiently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. We should draw the same conclusion I think about the prohibition of same sex marriage. Irrational ideas of stigma and contamination the kind of animus the court recognized in Romer is at least one of the most powerful forces in its support. So thought the Supreme Court of California in October 2008 writing beyond moral disapprobation gay persons also face a virulent homophobia

that rests on nothing more than feelings of revulsion toward gay persons and the intimate sexual conduct with which they are associated. Such visceral prejudice is reflected in the large number of hate crimes that are perpetrated against gay persons. The irrational nature of the prejudice directed a gay persons who are ridiculed ostracized despised demonized and condemned merely for being who they are is entirely different in kind while then it goes on with the technical legal argument contrasting it with other groups that had been denied suspect class status. So so we've now seen the prominent arguments against same sex marriage. They do not I think stand up very well. We haven't seen any that would supply government with a compelling state interest. And it seems likely given Romer that these arguments motivated by animus fail even the weaker rational basis test. The argument in favor of same sex marriage is straightforward. If two people want to make a commitment of the marital sort

they should be permitted to do so and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their equal dignity. This I think is an exclusion that we can no longer tolerate in a nation dedicated to the ideal of equal justice for all. Thank you. Yeah I actually spend more time on the arguments and in the book of course. That's one I think. I mean his whole view of society is solid eristic. He thinks that society cannot marshal the strength to resist for example an enemy an external enemy unless people have a high degree. Of solidarity around basic moral convictions and his only support for that is purely speculative. He just says Well

homosexuals he says will be like people who are sunk in drug addiction and they will lack the will to fight. Well this parallel is of course completely weird because there's no more like drug addicts than any other persons are whether certain drug addicts are unable to fight that's an empirical question one should investigate that. But certainly to just say that because of your sexual practices you're unable to fight. We now know that that's empirically just totally false so. So that was his argument. Leon Kass has a very different view. I mean Leon Kass is not a a Burkean conservative like devil and he's not I think his idea of disgust is much more as it were teleological and theocratic although he doesn't mention God he does use words like implanted in us. And I think the idea is that there's a purposive nature to discussed. I think he believes that it was implanted in us by God in order to steer us away from evil and so if we go against it very likely evil

will befall but see once again there is just a complete lack of empirical scrutiny of the actual cases because we of course there are so many cases where something that was once disgusting to the majority has been accepted and embraced with no harm to society. The integration of children with disabilities into the public schools is I think one of the most salient examples of something you know at one time most people. Oh you know I can't look at these people they discussed me. And yet of course now in the wake of the Individuals with Disabilities Education Act and all the Americans With Disabilities Act. People with a variety of disabilities both mental and physical are in public. In our society and what's happened is instead of society falling apart the disgust has fallen apart and I have a colleague who has a very serious physical disability the kind of neurological disability and he likes to point out that under Illinois law until

quite recently he would have been unable to appear in public on the grounds that he would disgust people. Well he's one of our best professors of constitutional law he's an absolutely wonderful person and a father and a family person and you're just so so all these things are the result of the integration but the integration had to come first because when the people weren't seen who who knew you know what would what would happen. So I guess that's my prediction and it's not just my prediction but I think it's borne out by a lot of empirical evidence about generational differences about gays and lesbians namely when they're out when they're seen when they're known to be your friends your peers and so on that these attitudes of disgust crumble and there is a very definite generational difference around this which makes me actually much more optimistic about sexual orientation discrimination than I am about massaging it because you know it's not that the case is really that the desire to subordinate women goes away once you see women. Not at all. But I think

so. So you know in some ways I think it's very much like disability that when the people are out when they're part of the public space then one can't help noticing that there's humanity and there's not demons there so. So anyway that's that's what I think the evidence is showing us. Well yeah. Now here I debated for a long time how far deep how deep I want to get into polygamy and incest because as you well know those are the scare stories that are used in the slippery slope argument if we allow same sex marriage then we'll be forced down the slope and we'll have to tolerate polygamy and incest. Well actually I think the list or the framework of the legal argument is. Typically that the state will have to show a compelling interest to deny because OK under the due process and equal protection clauses all individuals have a fundamental right to contract a marriage and that right can be trumped only by a compelling state interest. So what is the

compelling state interest in the case of gays and lesbians Well courts have repeatedly concluded they can't find any. What would it be in the case of polygamy. Well the police in me that used to be practiced used to be sex unequal and it used to be a mode of subordination of women in a way. I mean although I don't know that in the 19th century it was any worse than monogamous marriage in that respect. But if you know what I think if if polygamy that was available only to men were what was under discussion then one could certainly say we have a compelling state interest in sex equality that trumps that. It would be parallel to there's a case called Bob Jones versus us where Bob Jones University which forbad interracial dating was held to. So there was they lost their tax exemption and it was held that that was a substantial burden to their free exercise of religion but it was trumped by the compelling interest in racial equality. Now that has never been said about sex and they the courts don't want to go there because it basically means that the Catholic

universities whose presidents are required by statute to be a member of a certain order of priests or go male. It would have to lose their tax exemptions. I mean I honorable exception of Georgetown which changed it saturates and now has a late president but all the others you know would be they would be in big trouble if Bob Jones if race and sex were treated similarly by the courts. But in any case let's just suppose the courts really cared about sex equality in the same way that they cared about race. Then I think there would be a compelling state interest in sex equality that could be could trump that kind of old style polygamy. But now what about what's called in these days polyamory that is an agreement among a group of people both male and female to have let's say sexual exclusivity within the group and with others and so. Well what would be the compelling state interest that could prohibit that. What I can think about is administrative complexity because obviously. It's hard enough when you have multiple marriages right. But if you look at the

history of the concept of compelling state interest they're very resistant to the idea that administrative complexity all by itself supplies a compelling state interest. The one case where they did allow that was in a case where Native American parents did not want to give their child a social security number for religious reasons. And they said look we just can't run the country if some child doesn't have a Social Security number. But would this rise to that height I don't know. I mean that would have to. That would be the terrain on which it would have to be fought out but I don't think there's anything intrinsically heinous about polygamy so long as it's consensual and sex equal now incest is complex because you've got parent child says no that's a case of child abuse Oh OK. And I think it's fine to have a very firm prohibition of any kind of relationship even allegedly consensual between parents and children maybe even when the children have passed the normal age of consent because it often reflects an underlying pattern of abuse. But an adult

brother and sister the usual interest that's cited is a healthy interest. And you know that just doesn't stand up anymore because we have genetic testing we have counseling and we allow people with the Tay-Sachs gene to get married we just counsel them about children and so on. So I think the public health interest just doesn't work anymore and our society is very two faced anyway about brothers and sisters because everyone goes and you know Moon's overdeveloped array and problems of Byron and Shelley and all these very romantic depictions of incest and then they say oh horrible and disgusting when it's in a real life context so. But you know so I think we really ought to think about these things but saying it in a book where I was trying to persuade the general public I mean I did in the end I wrote it without that and then I just thought well you know this is me and this is what I think and so I added that that and then I added the whole chapter about public sex and that which

again I think is going to put some people off but nonetheless. You know. I think I think they're the operative distinction is it is consent. And I think MIL was on the right track where he said the right distinction is not the public private distinction it's the distinction between the self-regarding that is what concerns only the interests of the parties who participate in consent and the other regarding that which implicates the interests of people who don't consent and so sex and sex or sex by two people who seclude themselves in the words of it seems to me self-regarding in the real sense and so I think we should certainly you know protected in the same way that we protect sex in the home. So anyway so those are the ways in which I got ahead of my desire to persuade the public. Well the question whether to approach this question legislatively or through the courts I think is very complicated now. What's often said is oh courts are not

democratic and this is a Democratic issue now of course that's for the reason that you suggest in your phrasing of your question doesn't quite make sense because we've decided that the kind of democracy we want to have is one where certain fundamental rights are protected beyond the reach of majority vote. So with turn it over to the majority is a little bit odd in that sense but so I really think this is an issue that implicates fundamental constitutional rights. It doesn't have any business being voted up or down by a majority. However in terms of the evolution of. Of our society. I think it's dangerous to have people who are perceived as elites deciding on something getting you know pitting themselves against majorities. We see with the abortion issue how difficult that has been and a lot of people believe that if Roe had been decided later or there'd been a more gradual series of cases while society evolved it would

have been a better thing and I think with sodomy what happened was they really did. They waited there to. They bided their time and by the time they decided there really was no opposition. But if they decided the marriage thing and that's what I think the boys Olson case splendid though it is dangerous because the court is going to they're going to say no anyway. But I mean even if they had been inclined to say no and they said yes then they would have been a terrible backlash and people would immediately try to strip the court of various powers that it has because there have been these court stripping bills that have been introduced to say things like court Supreme Court can't hear cases connected with the Pledge of Allegiance for example. And so that kind of thing would start up and then we'd have just a terrible battle about Supreme Court appointments even more terrible than we now have. So I guess I think that that might be one reason too. You know to hold off and not have the Supreme Court weigh in I hope they don't have to. I hope they find as with the

pledge they found they found a technical exit strategy that I didn't have to decide the case because they found the plaintiffs didn't have standing and I hope they can avoid deciding the Olson case going in very bad for the country. Now state courts are different. But then each state is different and so sometimes the court has a kind of legitimacy and it's not going to be countered by the public. California as we see the. Given the ease of the referendum thing it turned out differently and it's been very ugly and unpleasant for everyone. So I think each state has to decide what's the best for it want that one more thing I'll say on this is we should not assume even if people people like majorities we should not assume that legislatures are the voice of the majority. That's often not the case they are the voices of lobbying groups and various other things. And in the case of Illinois where in my state we've been fighting for about 15 years to get civil unions. Vast majority of citizens support civil unions and

probably marriage too. And not only that but a vast majority of Catholics support civil unions. However the Catholic hierarchy does not support it and for that reason politicians who are going to have to run for re-election in two years don't want that trouble. They don't want to vote against the bill because they know their constituents supported but they don't want to vote for it either because they know that if Cardinal George denounces them from the pulpit that would just get in the way of their re-election campaign. And so they bottle it up in committee year after year after year and it never comes to the floor for a vote. So that is not democracy. It's not so. So even if you won like two majorities that is not it so in the case like that I think the poor majority has nowhere to go but the courts and that's what a lot of concern politicians in Illinois are thinking so. So anyway that's just a further wrinkle to that issue. Yeah I mean I think what I'm saying is that you don't get to respect unless the

imagination is active first because if the imagination doesn't ascribe human purposes then you can't get even to the point of respecting somebody. So I mean one position might be Respect is insufficient and we need sympathy too but my position is even as it were stronger that we can't quite have respect without activating sympathy. And I think that's just true in life generally that you know the ability to see another human being as a full fledged equal human being is an imaginative achievement and it's one that often doesn't happen when you just see these shapes and you think oh well that's utterly different sort of creature. And we know that subordination of all kinds of racism homophobia misogyny and so on often proceeds by saying well this is essentially kind of a different species. It's not my kind at all. And then the imagination has just not done its work. I mean this is connected to another

great concern of mine which is the decline of the humanities in public education because I think you know that imagination needs to be cultivated and it's increasingly being you know being neglected. And so we could well lose ground here if we aren't alert to the fact that the arts and the humanities are essential ingredients. I mean if I just wanted to point to one thing that made progress for us on this issue I might point to Will and Grace because you know that over the years because it's very funny and well-acted and then cleverly depicts a range of gay lifestyles not just one thing but also depict people who are pursuing what if. Things pleasure sex but also love friendship. And so it gets people imaginatively involved with gay lives in a way that you know the pleasure kind of sugar coats the learning experience and I would say that that's done a great deal

for that issue in our country perhaps not as much as knowing people who rely for lesbian gay but something you know because sometimes people are living in places where people aren't out and they don't feel they can be out and then they can still see TV. So yeah. So I think the imagination is crucial and the ability to connect to someone that you know and care about you can connect gayness to humanity is really what we need here. My mother was terribly homophobic like most people of her generation and then she realized that Rock Hudson who she always had a crush on was gay and it just kind of turned her around like that because she had always recognized him as a human being and she had a crush on him. And the several of a sudden she realized a gay person could be him. But that was at the age of 65 or something. But anyway you know it's that kind of thing that we need to rely on because otherwise we just have something completely abstract that isn't filled

up with any kind of sense of the other as a human. This is of course a wonderful question and it's like a perpetual it's it's like a blueprint for humanities education isn't it. I mean it's starting with that problem of how can we ever inhabit the experiences of another. Well of course how can we ever inhabit our own is an equally difficult question and what we know is that very often the two go together and people who have never been asked to talk to their family about their own feelings and their fears and their weaknesses and their shame have a corresponding difficulty in imagining how their behavior affects others so. Yeah but I mean so the first thing would be the you know the simple one well we all have experiences and they're sort of similar but of course a big part of that education would be to show how different conditions of life and different backgrounds construct different inner worlds and

I think that's why a big part of humanities education should be to confront works written by people from the different minority positions and. And of course those works both invite and to some extent repel understanding. Richard Wright said his whole aim in creating the character Bigger Thomas was to show that you couldn't understand his point of view and how far you couldn't understand it. So knowing all those things you know is what we want to be doing all the time and it isn't just about groups. One time I was in India with an activist and we were working on a literacy project for little girls and I said to her what would you urge me to say when people ask how Western person could understand the experience of these girls in India. And she thought for a while and she said you know I have the greatest difficulty understanding my sister. So I think you know what that was saying is there are obstacles in any human relationship. And they're not I mean it's not even a

question of more or less it's a question of different and maybe the obstacle in the case of the sisters is about rivalry and envy. The obstacle in the case of me understanding those little girls is just ignorance and lack of experience and of course power interests whatever interests one brings to it. But anyway I think you know what we all have to learn is that there are those obstacles that they exist in our relation to ourself just as much and that we really need to learn how to talk about the obstacles and how we might possibly get around them and I think with. Lesbian gay issues I was told about this because when I teach law students particularly and I had this course called law and literature where one of the things I wanted to talk about was that was this issue of understanding minority perspectives and what could they read that would confront them with Lesbian and Gay perspectives that they would be able to then talk about and that we could have a good class about. That was the question. Now the difficulty there was because I

have a wide range of students and we get about 20 students every year from BYU who have extremely homophobic attitudes and then of course there's a whole range of attitudes. If I give them something from contemporary gay fiction it's going to put them off very quickly. And the people a large segment just will find it disgusting and they won't be able to get past that. If I give them E.M. Forster's Morris the gay and lesbian suits with a terribly sentimental and disgusting you know. So it's very difficult so I in the end I guess a seven Williams's book and things like that where they're actually interviews with people is what I found the best but anyway so so there are all these all these problems are great and you know that's why we really need to spend a lot of our lives studying the humanities because it's only there that we get this kind of refined dexterity and negotiating our way through these problems. Did everyone hear the question asked

whether tolerant societies in the West have an obligation to promote tolerance in societies that are not so tolerant. Well I mean first of all I guess one might contest that characterization because I do think that the US has a long history of Puritanism an intolerance that's not paralleled by anything in Europe except possibly Britain and so if you go back I mean France got rid of the sodomy laws with under Napoleon and so there's a big big difference with. And you know I mean I think India has been about neck and neck with the U.S. in combating this issue. Maybe you know in social respects there may still be much more. Discrimination in public space at least but the NAS case was I thought just so beautifully argued and it was argued more. But the the whole all the discussed stuff was brought out in that case and it is such such a powerful way. So I thought it was one of the it

was the case that threw out the sodomy laws in India. So I think in terms of societies around the world there's great variation and I mean but in general do does a country have an obligation to promote the good in another country well I think that's a very something one should back off from in terms of any intervention. Now what I do with most of my life is to have this human development and capability Association which is fostering a certain conception which of which this would be one part of course. What a good basis for social justice would be. But I think you know get out there in the international arena argue persuade help and GEOS that are doing good work on that area and make make networks with with them. But for the country to do something politically to another country I'm really quite wary of that and I think the most that one could probably

the ones justified in doing if it's a country with any degree of legitimacy. Now of course some countries if there is mere tyranny then one might have more liberty to help the underdogs in some way. But but I mean let's assume it's a country such as Pakistan with which is not a perfect democracy by any means but it's a country with some degree of legitimacy Anyway I think. You know give money to organizations that are working on issues that you care about that I think a nation can do rather than just giving its foreign aid directly to the government which in the case of corrupt governments would be a stupid way of spending your money anyway. You might well give it to NGOs who are working on education of girls or some other issue that you care about and that happens all the time. Most of the projects that I've worked with on female literacy have been supported by the governments of Sweden Netherlands and so on. So I think that okay that's not too imperialist but any kind of direct

governmental intervention either economic sanctions or political pressure I think is you know it's got to be really watched out for and because one reason is it's just wrong. I think nations are sovereign and they have a right to choose their own policies but. But another reason is it's often a cover for something else as we well know with the Iraq war and the way that language of rights was was used there. That's a really neat question. I don't know but I I guess I think it also side of all kinds not just party politics democracies but other kinds of governments. You always find some group that stigmatized and targeted for disgust the Jews in medieval Europe women and so many times and places right. You know what Whitman thought that somehow or other we could learn to rise above that and that there could be a society that just embraced the body and I think well this gust with one's

bodily fluids needn't have anything wrong with it I mean it is only when you start projecting it onto other people or groups of people that it becomes morally wrong I think. But but Wittman seem to think that you first have to re educate yourself about the body and you have to learn to love your feces and so I Sing The Body Electric as an attempt to reconstruct the attitude to the body so that disgust wouldn't spread outwards. But we don't know whether people really could live like that. I think it's hard to imagine whether there could be as I would like to think that there can be societies that you know they may keep disgusted feces and other bodily fluids because probably that's evolutionarily valuable in steering us away from things like spoiled milk and so on. But you know but avoid projecting it on to people. I would like to think there could be such a society but I don't know that there ever has been one. So I think you're right that you know we solve one problem and then it pops up in another place but at least I think what we can do is refuse to base a law on it that we can do and

we really should resist Devlin and cast and say well law at any rate is only based on in a million idea of Homer and. And I think to a great extent we're moving in that direction now. I think you're right that the partisan bickering they find the discussed is a very potent weapon. I mean you see this in Washington today you can find hundreds of examples in the recent threats directed against members of Congress but I've seen it you know unpopular figures who are being attacked in all kinds of ways. Turn up on websites with things smeared all over them and so on. And you know it's powerful it brings people together I think you're right. And so we really have to resist that. But I don't know any reason to believe that if we were in a you know a fascist society would be any less. I mean it's just a bond human bonding thing that could happen in any kind of society. And I think what's important is to denounce it when it happens and just say we're not about that and that is happening. I'm very glad.

So we hope that it will keep on happening. Thank you.