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Sexual Orientation and Religion

Martha C. Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, and is appointed in the Law School, Philosophy Department, and Divinity School.  She is the founder and 9780195305319coordinator of the Center for Comparative Constitutionalism. Her book, From Disgust to Humanity: Sexual Orientation & Constitutional Law argues that disgust has been among the fundamental motivations of those who are fighting for a variety of legal restrictions affecting lesbian and gay citizens. In the excerpt below Nussbaum uses religious history as a metaphor to inspire us to treat all citizens as equals regardless of sexual orientation.

Many of the first American colonists came to the New World in search of religious freedom.  Dissenters of many types from the Anglican orthodoxy of Britain…they sought both the freedom to express their beliefs without penalty and the freedom to practice their chosen forms of worship.  Often, they failed to connect their search to politics of respect and toleration inclusive of those who disagreed with them…

Gradually, however, the very experience of living – often in taxing physical conditions – with people whose religious convictions differed from their own led many colonists to the realization that a good common life, and perhaps survival itself, required protecting religious liberty for all, and doing so with an even hand. Such policies had practical sources: people needed one another’s help if they were going to flourish in the new land…They began to notice that it was possible to live together on the basis of a moral consensus about values such as fairness, honesty, and impartiality, without necessarily agreeing on theological principles…

The trend in favor of religious liberty emerged, then, from the very experience of living together.  It also had a theoretical foundation, in the idea of conscience that many if not most of the new settlers brought with them…According to this view, all human beings have a capacity for searching for life’s ultimate significance and moral basis – for the meaning of life, we might say.  This capacity is a key part of what constitutes our dignity as human beings.  Conscience is present in all human beings, regardless of their beliefs, and it is present equally…

The early settlers were very far from having a view that many if not most Americans now have – namely, that many, or even all, religions are legitimate paths to salvation.  Virtually none of the early colonists accepted such a view.  They all thought that many of their fellow citizens were damned…We should not delude ourselves into thinking, then, that the policies of religious respect and fairness that gradually came to dominate in the colonies, shaping our Constitution, were inspired by respect for differing religious beliefs and practices.  Rather, they were inspired by a more basic underlying idea of respect for persons, for our fellow citizens as bearers of human dignity and conscience…Because human beings are of equal worth, conscience is deserving of equal respect.

…The American tradition…argues that respecting conscience involves granting ample liberty to each person to pursue his or her own way in matters of conscience.  Roger Williams used two illuminating metaphors.  Conscience, he said, must not be imprisoned – meaning that people must be given plenty of space to practice their religions, including acts of worship that their conscience dictates.  Even more abhorrent than imprisonment was what Williams memorably called “Soule rape” – the violation of a person’s very inner world by the demand for professions of faith that go against the promptings of conscience.  A world that respects conscience therefore gives equal liberty to all people to pursue its promptings in matters concerning both belief and conduct.

…Now let’s think about sex…For many if not most people, it is a central part of one’s search for the meaning of life.  Even if sex is in many ways unlike religion, it is like it in being intimately personal, connected to a sense of life’s ultimate significance, and utterly nontrivial.  Like religion, it appears to be something in which authenticity, or the involvement of conscience is central.  We understand that it goes to the heart of people’s self-definition, their search for identity and self-expression.

If we follow the parallel, we arrive at a picture of life in which people, respecting one another’s human dignity, conclude that it is wrong to demand of all citizens one particular mode of sexual conduct.  There should be plenty of liberty to believe what one likes about sex and to express those beliefs in action – with limits set, as in the religion case, by the protection of the legitimate interests of others.  As with religion in the early days of the republic, so with sex today: many people view the practices of some of their fellow citizens with profound aversion.  But they ought to respect the practitioners as their equals; respecting them as their equals, they should conclude that it is wrong to deny them the chance to search for meaning in their own way.

Now of course the pursuit of sexual happiness is in many important ways unlike religion… Nonetheless, the point of the analogy is to say that the pursuit of sexual happiness is viewed by most Americans as a very intimate and important part of the pursuit of happiness, a part that touches on the core of the self…For that reason…it is important for people to be able to manage the choices involved in their sexual lives themselves, without interference from the state, unless they violate the rights of others.  That though, as we shall see, is a major part of the unfolding constitutional tradition in this area…

That is the “free exercise” side of the analogy.  But what about the establishment side?  Could the state give everyone plenty of sexual liberty and still announce that a particular style of sexual interaction is preferred, and support that preference with public policies of various sorts…?  The religion analogy at least suggests that the answer should be “no”.  For the state even to “establish” a particular sexual style as the privileged one is to imply the inferiority of those not practicing the preferred style.

That side of our analogy is at issue today in the heated debate over same-sex marriage.  Unlike the liberty side, concerning which we have arrived at a wise consensus, the idea of nonestablishment, in sexual matters, does not command a consensus either in public life or in the law.

Religion is a good analogy to think with, because it reminds us that we may think other people wrong and sinful in matters of the deepest moral importance while yet agreeing that respect for them as equal citizens requires according them a broad sphere of liberty of both thought and conduct.  It also implies that we should not establish an orthodoxy that ranks some citizens above others.

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    The analogy of sexual freedom to religious freedom has been fruitfully explored in Janet Jakobsen’s and Ann Pellegrini’s 2003 LOVE THE SIN: SEXUAL REGULATION AND THE LIMITS OF RELIGIOUS TOLERANCE (NYU Press). Nussbaum surely must discuss this work in her newest book.

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