Martha Nussbaum, Essentialism, and Human Sexuality


MARTHA NUSSBAUM, ESSENTIALISM, AND
HUMAN SEXUALITY

CARLOS A. BALL*

It is an honor to participate in this program recognizing the work of
Professor Martha Nussbaum. A few years ago, after being fortunate enough
to have been awarded tenure, the university library at the institution where I
worked at the time asked me to choose a book I valued for an exhibit of
books chosen by recently tenured professors. I chose Nussbaum's Women
and Human Development, a book that has had a deep intellectual influence
on me.' One of the chapters in that book is titled "In Defense of Universal
Values," a topic that is relevant to this Article.

Critiques of essentialism are a common theme in the writings of
many contemporary academics. Indeed, queer theorists, critical race
theorists, post-structuralists, post-colonialists, and many feminists
consistently take issue with the notion that there are attributes or traits that
are intrinsically constitutive of categories such as men and women,
heterosexuals and homosexuals, disabled and non-disabled, and so on.2 The
emphases and nuances of the anti-essentialist critiques differ depending on
membership in particular academic camps and disciplines. However, the
critiques uniformly reject moral, philosophical, and political understandings
that are explicitly or implicitly grounded in the notion that identities-and
for some critics, even the very idea of a "human being"-are static and
fixed, that is, immune or separate from forces of social construction. Anti-
essentialist critiques hold instead that much (or all) of what constitutes us as
individuals is socially constructed and therefore fluid and contestable.

* Professor of Law & Judge Frederick Lacey Scholar, Rutgers University School

of Law (Newark). I would like to thank Andy Koppelman and Ed Stein for providing me
with helpful comments on an earlier draft of this Article.

I MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES

APPROACH (2000) [hereinafter NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT].

2 The anti-essentialist scholarship is vast. For some representative examples, see

NANCY E. DOWD & MICHELLE S. JACOBS, FEMINIST LEGAL THEORY: AN ANTI-ESSENTIALIST

READER (2003); ELIZABETH SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF ELUSION IN

FEMINIST THOUGHT (1988); Trina Grillo, Anti-Essentialism and Intersectionality: Tools to

Dismantle the Master's House, 10 BERKELEY WOMEN'S L.J. 16 (1995); Angela P. Harris,
Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1989).



Columbia Journal of Gender and Law

From an anti-essentialist perspective, Martha Nussbaum's liberal
humanism is intrinsically suspect. Nussbaum, after all, grounds her moral
and political philosophy in a particular understanding of what it means to be
human, one that is driven by certain capabilities that she argues are
necessary to lead a fully human life. Although Nussbaum does not usually
refer to herself as an essentialist3-few do, since the term is largely used
only in a pejorative sense-her capabilities approach to justice is explicitly
universalist; 4 it is grounded in commonalities and found across time and
place, allowing us to recognize each other as human.

It is important to note that Nussbaum's universalism is of a very
different order than that usually associated with liberal political theory
because it refuses to locate the source of human dignity, which serves as the
foundation of her moral and political philosophy, solely in man's capacity
to reason. Instead, Nussbaum contends that the capability to affiliate with
others also plays an architectonic role in our lives because we exercise most
of our important capabilities with and through others. As she explains, "[t]o
plan for one's own life without being able to do so in complex forms of
discourse, concern, and reciprocity with other human beings is . . . to
behave in an incompletely human way." 6

In addition, Nussbaum's conception of what it means to be human
is decidedly non-metaphysical. It is derived not from philosophical
principles gleaned through the application of abstract reasoning, but from
the interpretation of human practices and experiences, including the stories
we tell each other about our lives and aspirations. It is also not dependent
on "facts of human nature," whether physiological or psychological, that are
separate from our ethical evaluations of what is necessary to lead a full
human life. For Nussbaum, in other words, the value of central human

3 Nussbaum's most explicit defense of essentialism can be found in Martha C.
Nussbaum, Human Functioning and Social Justice: In Defense of Aristotelian Essentialism,
20 POL. THEORY 202 (1992) [hereinafter Nussbaum, Human Functioning and Social Justice].
When the same article was published in a different journal a year later, however, the word
"essentialism" in the title was replaced with "universalism." See Martha C. Nussbaum,
Social Justice and Universalism: In Defense of an Aristotelian Account of Human
Flourishing, 90 MOD. PHILOLOGY S46 (1993) (Supp.).

4 Nussbaum has elaborated on the capabilities approach in many writings. The two
most comprehensive elaborations can be found in MARTHA C. NUSSBAUM, FRONTIERS OF
JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP (2006) [hereinafter NUSSBAUM,
FRONTIERS OF JUSTICE] and NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 1.

5 1d.

6 NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 1, at 82.

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2010] Martha Nussbaum, Essentialism, and Human Sexuality 5

capabilities is determined through ethical interpretations and evaluations of
human experiences, rather than through the discovery of so-called natural
principles or facts that are independent of those evaluations.7

There was a time early on in Nussbaum's elaboration of the
capabilities approach when she criticized John Rawls for deploying an
unduly restrictive understanding of the good in determining what is
necessary to promote human flourishing.8 However, a few years later, at
around the time that Rawls published his book Political Liberalism,9

Nussbaum started describing the capabilities approach in terms of a
Rawlsian overlapping consensus that can be reached by individuals with
different conceptions of the good.' 0 Nussbaum now argued that the
capabilities view, like Rawls's political conception of justice, "is not
grounded in any theory of the human being that goes beneath politics." '

As I have noted elsewhere, it is not clear that Nussbaum's
conception of what it means to be human and to lead a full human life is
indeed as thin as that of Rawls. 12 I do not, however, explore that issue
further in this Article. Instead, I focus on Nussbaum's understanding of sex
and sexuality to try to determine which of their aspects she deems to be
universal and which she thinks are constituted through forces of social
construction. I do this because I believe it is important to make it clear that
Nussbaum's human liberalism is consistent with the prevailing view in
queer and gay/lesbian studies that sexual orientation identities are the result
of social constructivist forces. It would be a mistake for those who are

7 MARTHA C. NUSSBAUM, SEX AND SOCIAL JUSTICE 40 (1999) (noting that the
capabilities approach's "account of the human is... neither ahistorical nor a priori").

8 Martha C. Nussbaum, Aristotelian Social Democracy, in LIBERALISM AND THE

GOOD 203, 227 (R. Bruce Douglass et al. eds., 1990).

9 JOHN RAWLS, POLITICAL LIBERALISM (1993).

'0 Nussbaum did so explicitly for the first time in a paper first read in 1994 and

published in 1998. See Martha C. Nussbaum, The Good As Discipline, the Good As
Freedom, in ETHICS OF CONSUMPTION: THE GOOD LIFE, JUSTICE, AND GLOBAL STEWARDSHIP

312, 314-15 (David A. Crocker & Toby Linden eds., 1998).

11 Martha C. Nussbaum, Political Animals: Luck, Love, and Dignity, 29

METAPHILOSOPHY 273, 284 (1998) (footnote omitted); see also Martha C. Nussbaum,
Aristotle, Politics, and Human Capabilities: A Response to Anthony, Arneson, Charlesworth,
and Mulgan, 111 ETHICS 102, 119 (2000) ("[M]y use of an idea of the human being [is]
close[] to the Rawlsian idea of a concept of the person.").

12 CARLOS A. BALL, THE MORALITY OF GAY RIGHTS: AN EXPLORATION IN

POLITICAL PHILOSOPHY 85-87 (2003).



Columbia Journal of Gender and Law

interested in promoting pluralism and diversity in matters of sexuality to be
skeptical of Nussbaum's human liberalism because of its universalist (or
essentialist) underpinnings. In fact, that liberalism, for reasons I will
explain, has much to offer lesbian, gay, bisexual, and transgender
("LGBT") people.

Part I begins by providing a brief history of the debate within
sexuality studies between essentialists and social constructionists. Part II
discusses Nussbaum's writings on sexuality and assesses the extent to
which they are consistent with a social constructionist understanding of
sexual orientation. Finally, Part III explains why Nussbaum's liberal
humanism, which encourages us to recognize the humanity of those who
seem least like us, is a compelling form of argumentation on behalf of
sexual minorities.

I. THE ESSENTIALIST VS. SOCIAL CONSTRUCTIONIST
DEBATE ON SEXUAL IDENTITY CATEGORIES

As far as we can tell from the historical record, "erotic and sexual
interactions between persons of the same sex are attested in almost all
cultures known to us across time and across the globe." 13 Some scholars
have looked at this consistency through time and place and concluded that
"gay people," that is, individuals who have a distinct identity based on their
same-sex erotic preferences, have always existed. These writers, in other
words, believe that there are "objective, intrinsic, culture-independent facts
about what a person's sexual orientation is."'' 4

This so-called essentialist position in matters of sexuality is usually
associated with the late historian John Boswell. As he made clear in the title
of his 1980 book, Christianity, Social Tolerance and Homosexuality: Gay
People in Western Europe from the Beginning of the Christian Era to the
Fourteenth Century, Boswell believed that "gay people," as a distinct
category of individuals, have existed in all Western societies. 15 Although
Boswell, like almost everyone else, eschewed the label of "essentialist," he

13 SUSAN ACKERMAN, WHEN HEROES LOVE: THE AMBIGUITY OF EROS IN THE

STORIES OF GILGAMISH AND DAVID 4 (2005).

14 EDWARD STEIN, Introduction, in FORMS OF DESIRE: SEXUAL ORIENTATION AND

THE SOCIAL CONSTRUCTIONIST CONTROVERSY 3, 5 (1990) [hereinafter FORMS OF DESIRE].

15 JOHN BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE AND HOMOSEXUALITY: GAY
PEOPLE IN WESTERN EUROPE FROM THE BEGINNING OF THE CHRISTIAN ERA TO THE
FOURTEENTH CENTURY (1980).

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2010] Martha Nussbaum, Essentialism, and Human Sexuality 7

believed that there have always been people whose "erotic inclination
toward their own gender [is] a distinguishing characteristic.' 16

Boswell's position, of course, was inconsistent with that of Michel
Foucault as set forth in his highly influential book The History of Sexuality,
Volume 1.17 In that book, Foucault famously contended that there is nothing
intrinsic or fixed about human sexuality; instead, what we think of as
sexuality is a byproduct of the work of systems of knowledge and power as
represented, most specifically, by scientific, medical, and psychiatric
disciplines. According to Foucault, one of the defining characteristics of the
modem era is the extent to which these disciplines have grabbed hold of
sexuality by studying, analyzing, and schematizing it through an endless
discussion and cataloging of sexual desires, tendencies, and acts.' 8 It is from
these discursive processes that what had before been viewed simply as the
sexual act of sodomy became the basis for a social identity. As Foucault
quipped, "[t]he sodomite had been a temporary aberration; the homosexual
was now a species."' 9 He added that while under

ancient civil or canonical codes, sodomy was a category of
forbidden acts, . . . [in the] nineteenth-century [the] homosexual
became a personage, a past, a case history, and a childhood, in
addition to being a type of life, a life form, and a morphology ....
Nothing that went into his total composition was unaffected by
his sexuality.

20

16 Id. at 44. Boswell clarified later that although most gay people in earlier western

societies may not have been conscious of their sexual orientation as a distinguishing
characteristic, that characteristic nonetheless existed. John Boswell, Revolutions, Universals,
and Sexual Categories, in HIDDEN FROM HISTORY: RECLAIMING THE GAY AND LESBIAN PAST
17, 35 (Martin Duberman et. al eds., 1989). In another essay, Boswell argued that in western
"ancient and medieval societies," the concepts (if not the terms) of homosexuals and
heterosexuals were "common and familiar." John Boswell, Categories, Experience and
Sexuality, in FORMS OF DESIRE, supra note 14, at 133, 172. Those concepts "received little
attention in the records of these cultures not because few people recognized them, but
because they had little social or ethical impact." Id. (footnote omitted).

17 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY, VOLUME I: AN INTRODUCTION

(Robert Hurley trans., 1978).

I8 ld. at 42-49.

1d. at43.

20 Id. Although these passages in Foucault's book have been generally interpreted

as standing for the proposition that sexual identities are a modern invention, David Halperin
argues that Foucault's point was more limited because it sought only to contrast an earlier



Columbia Journal of Gender and Law

Foucault's work has served as the foundation for that of many
sexuality scholars who have both embraced and elaborated on a socially
constructed understanding of sexual identity categories. These writers have
in part supported their position linguistically by noting that the word
"homosexual" did not exist before scientific discourses first put it to use in
the second half of the nineteenth century. 2' The absence of such a term
through most of history strongly suggests to the social constructionists that
homosexuality-though not necessarily homosexual sex-is a modem
invention. As Robert Padgug puts it, "'[h]omosexual' and 'heterosexual'
behavior may be universal; homosexual and heterosexual identity and
consciousness are modem realities. . . .To 'commit' a homosexual act is
one thing; to be a homosexual is something entirely different. 22

In addition, social constructionists point to historical evidence from
before the second half of the nineteenth century, which suggests that many
societies failed to problematize sexuality along the (for us) familiar
homosexual/heterosexual axis. For example, David Halperin, relying on the
work of the historian George Chauncey, points out that the scientific and
medical professions in Western countries during the first half of the
nineteenth century viewed same-sex sexual acts as a manifestation of
"sexual inversion," a categorization of sexual deviance without a clear
correlation to what we today consider to constitute homosexuality.23 The
classicist Halperin also argues that Aristophanes's famous myth in Plato's

legal discourse that spoke of acts (sodomy) with a later psychiatric discourse that spoke of
sexual subjects (homosexuals). Halperin explains that this "schematic opposition between
sodomy and homosexuality is first and foremost a discursive analysis, not a social history. It
is not an empirical claim about the historical existence or nonexistence of sexually deviant
individuals." David M. Halperin, Forgetting Foucault, in THE SLEEP OF REASON: EROTIC
EXPERIENCE AND SEXUAL ETHICS IN ANCIENT GREECE AND ROME 21, 28 (Martha C.
Nussbaum & Juha Sihvola eds., 2002). Halperin then proceeds to argue that it is incorrect to
believe "that sexual acts were unconnected to sexual identities before the nineteenth
century." Id. at 38.

21 See ACKERMAN, supra note 13, at 4-5 ("The initial evidence that many social

constructionists advance in favor of the theory of the homosexual as a distinct and novel
creation of modem Euro-American society is linguistic: the fact that the very terms
homosexual and homosexuality... are recent creations, products of late-nineteenth century
scientific discourse.").

22 Robert Padgug, Sexual Matters: On Conceptualizing Sexuality in History, in

FORMS OF DESIRE, supra note 14, 43, 58-59.

23 DAVID M. HALPERIN, ONE HUNDRED YEARS OF HOMOSEXUALITY 15 (1990)

(citing George Chauncey, Jr., From Sexual Inversion to Homosexuality: Medicine and the
Changing Conceptualization of Female Deviance, 114 SALMAGUNDI 58-59 (1982-83)).

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2010] Martha Nussbaum, Essentialism, and Human Sexuality 9

Symposium shows that the Greeks did not classify or distinguish individuals
according to the gender of their sexual partners.2 4

Martha Nussbaum, of course, in addition to being a moral and
political philosopher, is also a classicist. And, it turns out, Nussbaum is
largely in agreement with Halperin and others regarding the social
construction of sexual identity categories.

II. THE LOCAL AND THE UNIVERSAL IN NUSSBAUM'S
WRITINGS ON SEX AND SEXUALITY

In an article published in the Virginia Law Review in 1994,
Professor Nussbaum discusses in some detail her interpretation of what
ancient Greeks, and in particular leading ancient Greek philosophers,
thought about same-sex sexual acts and relationships. 25 The article was an
outgrowth of Nussbaum's participation in the litigation challenging the
constitutionality of Colorado's Amendment 2, the state constitutional
provision-eventually struck down by the Supreme Court in Romer v.
Evans26-which would have denied lesbians, gay men, and bisexuals the
opportunity to seek sexual orientation antidiscrimination protection under
the law.

The year before the article appeared, Nussbaum testified as an
expert witness during a trial held to assess the constitutionality of
Amendment 2.27 In support of its position that homosexuality harms society
because it undermines the family and the well-being of children, the state
introduced expert witness statements from conservative philosophers John
Finnis, Robert George, and Harvey Mansfield.28 All three of these men
contended that the Greek tradition supported the view that homosexuality
was both morally wrong and a threat to society, thus necessitating legal
responses such as Amendment 2.29 Nussbaum was called to the stand by the
plaintiffs' lawyers primarily to respond to this claim.30 In doing so, she

24 Id. at 18-21.

25 Martha C. Nussbaum, Platonic Love and Colorado Law: The Relevance of

Ancient Greek Norms to Modern Sexual Controversies, 80 VA. L. REV. 1515 (1994)
[hereinafter Nussbaum, Platonic Love].

26 517 U.S. 620 (1996).

27 Nussbaum, Platonic Love, supra note 25, at 1517.

28 Id. at 1522.

291 Id. at 1522-23.



Columbia Journal of Gender and Law

disputed the state's witnesses' contentions that the ancient Greek tradition
supported arguments on behalf of Amendment 2.3' She later elaborated on
her interpretation of that tradition and its relevance to contemporary gay
rights debates in her law review article.32

In the article, Nussbaum explains that the Greeks, rather than
problematizing sexuality along gender lines, and thus creating gender-based
sexuality categories, focused instead on other criteria such as the age of the
sexual partners and the need to discourage "habits of passivity" in matters
of sexuality. 33 Although gender in contemporary times plays a
determinative role in our understandings and assessments of sexuality,
Nussbaum writes that "in Greek culture and practices, the gender of the
partner assumes far less importance . . . and is usually taken as less salient
than many other facts about a sexual act. Nor are people very often
categorized socially in accordance with their orientation toward partners of
a particular gender."34

Nussbaum also emphasizes the social contingency of what is often
thought to be natural and appropriate in matters of sexuality. In response to
the claim by the state's academic witnesses that homosexuality is
problematic because it is unnatural, Nussbaum argues that the ancient
Greek texts, by morally de-problematizing both sexual desire in general and
same-sex sexual conduct in particular, "force us to confront the fact that
much of what we consider necessary and natural in our own practices is
actually local and nonuniversal.' 35

Since Nussbaum's article ultimately concludes that the ancient
Greeks not only failed to problematize same-sex sexual relations, but that
they also saw them as good and valuable manifestations of sexual

3°ld. at 1523.

31 id.

32 Nussbaum, Platonic Love, supra note 25.

33 Id. at 1549.

34 Id. at 1544.

35 Id. at 1518-19. Nussbaum notes that the Greeks showed "that it was possible not
to single out the sexual appetite from the other appetites, as a source of special anxiety and
shame; that it was possible not to categorize persons in accordance with a binary division
between the homosexual and the heterosexual; [and] that it was possible to regard the gender
of one's sexual partner as just one factor in a sexual coupling, and not the most morally
relevant at that." Id. at 1598.

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2010] Martha Nussbaum, Essentialism, and Human Sexuality 11

36intimacy, she addresses the possible objection that perhaps the cultural
asymmetry between the "ancient sexual scene" and our own makes the
former irrelevant to contemporary disputes over gay issues. 37 She responds
to this objection by noting that "this asymmetry between cultures is exactly
what reading the Greeks is supposed to reveal to us: the fact that a society
may tolerate and even encourage sexual acts between members of the same
sex without regarding sex as the most morally salient feature about the act,
and without problematizing same-sex desire itself in a special way." 38

At the same time, however, Nussbaum makes it clear that the
Greeks' understanding of sexuality was not so different than our own that
they lacked "any conception of an erotic preference for members of one's
own gender."39 Nussbaum points out that in Plato's Symposium, "[b]oth
Pausanias and Aristophanes know and casually refer to people who have
such preferences, indicating as they do so that they are referring to a widely
accepted fact about human life .... [L]ike the preferences of homosexuals
today, their preference for same-sex acts is a stable and deep aspect of their
personalities."A4

Nussbaum in this last sentence posits that some individuals have a
deeply held preference for sexual relations with those of their own sex. 41 I

36 Id. at 1597. Nussbaum argues that:

[The major Greek philosophers] all believe that same-sex sexual desire,
including a characteristic orientation of that desire, can be an extremely
valuable element in human life, expressive of love and friendship and
powerfully linked to other social and intellectual ends. Relationships that
involve sexual desire of this kind can be a major vehicle of human
aspiration and are generally deemed more valuable as vehicles than are
marital relationships, whose ends are generally assumed to be less
profound."

Id. at 1597.

31 Id. at 1602.

38 Id. at 1603. See also David M. Halperin, Introduction to BEFORE SEXUALITY:

THE CONSTRUCTION OF EROTIC EXPERIENCE IN THE ANCIENT GREEK WORLD 1, 6 (David M.
Halperin et al. eds., 1990) ("[T]he study of classical antiquity offers us a special opportunity
to test our assumptions about what aspects of our lives might truly be common to all human
beings and what aspects are distinctive to the modem world.").

39 Nussbaum, Platonic Love, supra note 25, at 1603.

40 Id. (emphasis added).

41 In her recent book, Nussbaum also describes sexual orientation as "a deep-seated

characteristic." MARTHA C. NUSSBAUM, FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION



Columbia Journal of Gender and Law

will let others debate whether a same-sex sexual orientation is as stable and
as psychologically hard-wired, so to speak, as Nussbaum suggests. It is
important to note, however, that the question of what explains same-sex
sexual desire is a different one from that of whether sexual identity
categories-roughly comparable to those that we have today-were
reflected in the norms and practices of ancient Greece. The fact that some
individuals in ancient Greece may have had a deeply held preference for
sexual relations with others of their own sex does not mean that society
viewed them as belonging to a distinct category of individuals defined by
that desire in a way that is comparable to how society views gay people
today.

Indeed, Nussbaum makes it clear that the Greeks did not seek to
define or categorize individuals according to the sex (as opposed to the age
and social class) of their sexual partners. In the end, Nussbaum concludes,
what we know about Greek norms and practices shows that the existence of
individuals who prefer same-sex sex over different-sex sex does not mean
that it is natural or necessary to problematize, or attach moral meaning to,
that preference.42 This conclusion, of course, is entirely consistent with a
social constructionist understanding of sexual identity categories. 43

In recognizing, then, that some societies fail to problematize the
conjunction of sexuality and gender in the way that modem Western
societies have done, Nussbaum, when it comes to sexual identity categories,
far from being an essentialist, is instead a social constructionist. Nussbaum
locates a universalism in matters of sex not at the level of sexual identity,
but at a deeper level that understands the experience of sexual desire (of
some kind) and the seeking to satisfy sexual needs (of some kind) to be part
of what defines us as humans. As she puts it, "sexual need and desire are
features of more or less every human life. It is ... a most important basis
for the recognition of others different from ourselves as human beings. ' A

AND CONSTITUTIONAL LAW, at xvi (2010) [hereinafter NUSSBAUM, FROM DISGUST TO
HUMANITY].

42 Nussbaum, Platonic Love, supra note 25, at 1544-45.

43 Nussbaum notes elsewhere that while "[p]leasure and sexual contact are
ubiquitous, . . . it is society that has shaped them in a particular way, has marked certain
practices as salient and central, and has created certain desires corresponding to those
practices." Martha C. Nussbaum, Millean Liberty and Sexual Orientation: A Discussion of
Edward Stein's Mismeasure of Desire, 21 LAW. & PHIL. 317, 320 (2002) (footnote omitted)
[hereinafter Nussbaum, Millean Liberty].

44 Nussbaum, Human Functioning and Social Justice, supra note 3, at 217-18.

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2010] Martha Nussbaum, Essentialism, and Human Sexuality 13

For Nussbaum, sex is morally significant because it is an important
means through which we define and determine who we are as individuals.
As she puts it in her recent book From Disgust to Humanity: Sexual
Orientation and Constitutional Law, for most people sex "is a central part
of one's search for the meaning of life .... [I]t is connected to a sense of
life's ultimate significance, and utterly non-trivial .... [I]t goes to the heart
of people's self-definition, their search for identity and self-expression. 45

It is not surprising, therefore, that Nussbaum includes "having
opportunities for sexual satisfaction ' '46 in her list of "central human
capabilities ... that ... are implicit in the idea of a life worthy of human
dignity. 47 And, as she has made clear from the beginning of her
articulation of the capabilities approach to justice, that "approach is fully
universal: the [central human] capabilities.., are held to be important for
each and every citizen, in each and every nation, and each person is to be
treated as an end. '48

An important and recurrent critique of the liberal humanism of
thinkers like Martha Nussbaum is that, in emphasizing the moral value of
what individuals qua humans share, it occludes differences. This occlusion,
it is argued, is problematic for two principal reasons. First, liberal
humanism glosses over the bad (or harmful) differences that are created and
reified by hierarchical and subordinating social mechanisms. 49 Second,
liberal humanism undervalues and underappreciates the good (or beneficial)
differences that, when encouraged and promoted, can serve to undermine
oppressive and subordinating socially-imposed categories. 50

45 
NUSSBAUM, FROM DISGUST TO HUMANITY, supra note 41, at 39.

46 NUSSBAUM, FRONTIERS OF JUSTICE, supra note 5, at 76.

47 Id. at 70; see also Nussbaum, Millean Liberty, supra note 43, at 334 (suggesting
that "sexual fulfillment is a very important part of human life").

48 NUSSBAUM, FRONTIERS OF JUSTICE, supra note 5, at 78.

49 See Carol Quillen, Feminist Theory, Justice, and the Lure of the Human, 27
SIGNS 87, 96 (2001) ("[W]hat we most need to understand and evaluate is precisely what the
discourse of human liberalism occludes: the difference-making mechanisms that function
within it, or in some cases in spite of it, to create or perpetuate systemic hierarchies among
persons.").

5o See id. at 99 ("A theory that assumes or posits the human person as . . . an

autonomous moral agent can occlude or dismiss as irrelevant precisely the processes that
differentiate and individuate us.").



Columbia Journal of Gender and Law

It is this latter criticism that seems particularly relevant to
contemporary debates about the status of LGBT people in our society.
Several queer theorists and lesbian feminists have raised concerns about
framing political and legal issues affecting sexual minorities in ways that
encourage LGBT people to assimilate by embracing heteronormative
values. This concern has been expressed particularly strongly in the context
of same-sex marriage. Although queer theorists worry primarily about
sexual freedom and lesbian feminists primarily about patriarchy, both sets
of critics argue that the gay rights movement's pursuit of marriage
encourages LGBT people to form relationships that mimic the traditional
ideal for different-sex relationships, thus discouraging potentially more
radical and transformative modes of sexuality.51 Some of these critics also
note that the admission of gay people into the institution of marriage will
inevitably lead to the greater stigmatization of those who choose not to
structure their personal relationships in ways that replicate traditional
heterosexual norms.5 2

If there is anything that we can learn from our nation's long and
protracted battles over racial and gender equality, it is that there is no easy
or obvious way of finding the appropriate balance between emphasizing
considerations of sameness versus considerations of difference, nor is there
an easy or obvious way to address the stigmatization, marginalization, and
oppression of minority groups. To argue from the perspective of sameness,
as already suggested, can occlude important and meaningful differences
between those who subordinate and those who are victims of subordination.
In contrast, to argue from the perspective of difference can occlude
important and meaningful similarities between those at the top and those at
the bottom of social, political, and economic hierarchies. Given that the
queer theory and lesbian feminist literature generally emphasizes the
dangers of relying too much on sameness arguments, I finish this Article by
addressing some of the dangers of relying too little on sameness
considerations in advancing the interests of sexual minorities in our society.

51 For representative articulations of the feminist and queer theory critiques of the

pursuit of same-sex marriage as a civil rights goal, see generally Claudia Card, Against
Marriage and Motherhood, HYPATIA, Summer 1996, at 1; NANCY D. POLIKOFF, BEYOND
(STRAIGHT AND GAY) MARRIAGE (2008); MICHAEL WARNER, THE TROUBLE WITH NORMAL:
SEX, POLITICS, AND THE ETHICS OF QUEER LIFE (1999).

52 See Paula L. Ettelbrick, Since When is Marriage a Path to Liberation?,

OUT/LOOK, 1989, at 9, 14-17, reprinted in WILLIAM B. RUBENSTEIN, CARLOS A. BALL &
JANE S. SCHACTER, CASES AND MATERIALS ON SEXUAL ORIENTATION AND THE LAW 683, 685
(3rd ed. 2008) ("Ironically, gay marriage, instead of liberating gay sex and sexuality, would
further outlaw all gay and lesbian sex which is not performed in a marital context.").

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2010] Martha Nussbaum, Essentialism, and Human Sexuality 15

III. LIBERAL HUMANISM: WHAT IS IT GOOD FOR?

In her recent book, From Disgust to Humanity, Nussbaum describes
what she calls a "politics of humanity," which she defines as "a political
attitude that combines respect with curiosity and imaginative attunement. '53

This politics holds that we cannot fully and meaningfully respect others
unless we seek to imagine, and sympathize with, their experiences. For
Nussbaum, this attitude, which she acknowledges is "something close[] to
love," is a necessary prerequisite for the attainment of true equality by
marginalized groups.5 4

A politics of humanity encourages all of us to use our imagination
to see the world through the eyes of those whom we understand the least.
For some of us, those whom we understand the least may be LGBT people;
for others it may be religious fundamentalists; and for yet others it may be
those who seek to subordinate women. A politics of humanity asks us to do
hard psychological and emotional work by seeking to recognize ourselves
in those with whom we seem to share the least.

A politics of humanity can be particularly useful in undennining a
politics of disgust, which Nussbaum contends serves as the foundation for
much of the antigay rhetoric deployed by social conservatives today. The
emotion of disgust, Nussbaum notes, "expresses a universal human
discomfort with bodily reality, but then uses that discomfort to target and
subordinate vulnerable minorities." 55

Nussbaum explains that much of the hatred and discrimination
aimed at sexual minorities is grounded in responses of disgust to their
(actual or perceived) sexual practices. A politics of humanity encourages all
of us, including those who deem same-sex sexual desire and conduct to be
"disgusting," to focus on what we share with those whose norms or
practices we find disturbing. This change in vantage point can help to shift
our judgments from ones grounded in disgust and shame to ones based on
(potential) understanding.

It seems to me that much of the progress that we have made in this
country over the last generation in achieving partial equality and toleration
for sexual minorities is the result of the fact that a growing number of
straight Americans are recognizing themselves in the lives and aspirations
of LGBT people. There is perhaps no better indication of this than the fact

53 NUSSBAUM, FROM DISGUST TO HUMANITY, supra note 4 1, at xviii..

54 id.

55Id at xv.



Columbia Journal of Gender and Law

that a majority of Americans now support the legal recognition of same-sex
relationships, 56 with a growing number of them agreeing that LGBT people
should be provided with the opportunity of marrying the person of their
choice.57 This fundamental change in the views of many Americans could
not have taken place without at least an implicit understanding on their part
that the love and care found in many same-sex relationships are no different
than the love and care found in many different-sex relationships.

It used to be that the vast majority of Americans could not get past
their feelings of repulsion at the thought of sexual intimacy between two
individuals of the same sex. There was a time, not too long ago, when most
people saw same-sex sexual conduct and relations as so unnatural and
perverse as to be, in a crucial sense, less than human. Indeed, it is no
coincidence that sodomy statutes in the United States-mostly codified as
measures aimed at "crimes against nature"--covered not only acts like anal
and oral intercourse, but also bestiality.58 Reflecting this line of thinking,
the conservative legal philosopher John Finnis has argued that same-gender
sexual intimacy is, morally speaking, akin to the "[c]opulation of humans
with animals. 59

Those who seek to dehumanize LGBT people view them
exclusively through the prism of sex rather than seeing them as full human
beings who share with others a myriad of complex needs and capabilities.

56 A recent national poll conducted by the Pew Research Center for the People and

the Press found that "[a] clear majority of Americans (57%) favors allowing gay and lesbian
couples to enter into ... civil unions." Press Release, Pew Research Center for the People &
the Press, Majority Continues to Support Civil Unions (Oct. 9, 2009), available at
http://people-press.org/reports/pdf/553.pdf.

57 Adam Nagourney, Signs G.O.P. is Rethinking Stance on Gay Marriage, N.Y.
TIMES, Apr. 28, 2009 (reporting on recent poll finding that forty-two percent of respondents
"supported gay marriage, compared with 22 percent in March 2004").

58 WILLIAM N. ESKRIDGE, JR., DISHONORABLE PASSIONS: SODOMY LAWS IN

AMERICA 1861-2003, at 20 (2008) (noting that "American courts and commentators
uniformly followed the English buggery precedents in regarding [sodomy] as the penetration
of a man's penis inside the rectum of an animal, of a woman or girl, or of another man or
boy").

59 The full quotation is as follows: "Copulation of humans with animals is
repudiated because it treats human sexual activity and satisfaction as something
appropriately sought in a manner as divorced from the actualizing of an intelligible common
good as is the instinctive coupling of beasts-and so treats human bodily life, in one of its
most intense activities, as appropriately lived as merely animal. The deliberate genital
coupling of persons of the same sex is repudiated for a very similar reason." John M. Finnis,
Law, Morality, and "Sexual Orientation, " 69 NOTRE DAME L. REV. 1049, 1069 (1994).

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2010] Martha Nussbaum, Essentialism, and Human Sexuality 17

This form of dehumanization has both moral and political implications.
Morally it means that LGBT people are defined solely by their sexuality
rather than by the content of their character, relationships, and aspirations.
Politically it means that the resistance to gay rights positions has been
driven, as David Richards puts it, by "a dehumanizing obsession with
homosexuality solely in terms of a rather bleakly impersonal interpretation
of same-gender sex acts ... an interpretation that deracinates such sex acts
from the life of the person that is recognizably human or humane. 60

Although there are clearly some who continue to promote the
dehumanization of LGBT people, there is a growing segment of the
population that is looking beyond sexuality's surfaces-as represented by
the gender of sexual partners and the use of particular body parts in
particular ways in the pursuit of sexual pleasure-in order to focus on
something considerably deeper, that is, on the shared needs and capabilities
associated with sexual desire and intimacy. In doing so, a growing segment
of the population is increasingly looking beyond differences based on
sexual orientation and focusing instead on a humanity that is shared with
LGBT people.

To put it differently, the burden of proof regarding the basic
humanity of LGBT people is shifting. Not too long ago, LGBT people had
to prove that their sexual desires, acts, and relationships were not
inconsistent with what it means to be human. Increasingly these days, the
burden is on those who seek to deny that the sexual intimacy of LGBT is
recognizable as a manifestation of human needs and capabilities related to
sex and sexuality.

6 1

I agree with Nussbaum that it is possible to make defensible
judgments about capabilities that are central to the leading of a full human

60 DAVID A. J. RICHARDS, IDENTITY AND THE CASE FOR GAY RIGHTS: RACE,

GENDER, RELIGION AS ANALOGIES 183-84 (1999).

61 An example of this shift is reflected in the difference between the Supreme

Court's opinions in Bowers v. Hardwick, 478 U.S. 186 (1986), and Lawrence v. Texas, 539
U.S. 558 (2003). In upholding the constitutionality of sodomy statutes in Bowers, the Court
understood gay people as being incapable of forming relationships that were analogous to
those of straight people. See Bowers, 478 U.S. at 191 (noting that "[n]o connection between
family, marriage, or procreation on the one hand and homosexual activity on the other has
been demonstrated"). In contrast, the Lawrence Court, in striking down sodomy laws,
viewed gay people as bearers of human dignity who have the right to make decisions relating
to sexual intimacy without interference by the state. See Lawrence, 539 U.S. at 567 (noting
that individuals have the right to "retain their dignity as free persons" in the face of
regulations such as Texas's sodomy statute that "seek to control . . . personal
relationship[s]").



Columbia Journal of Gender and Law

life. Nussbaum's humanist approach is appealing not only because it is
grounded in observations and judgments based on human practices and
experiences, but also because its substantive content-in terms of the list of
central capabilities that define our humanity-is purposefully open to
contestation and debate. Her vision of the human, in other words, is neither
fixed nor static; instead, it is open to revision, especially as we learn more
about how the aspirations of subordinated groups are constrained by social
norms and expectations. The late Peter Cicchino eloquently defended this
view of human liberalism when he noted that it is crucial to think about
what it means to be human and to lead a fully human life from within "[a]
spirit of self-correction, of constant and careful attention to the rich texture
and fine detail of human experience, and a profound sensitivity to the
marginalized and the oppressed., 62

For those who remain nervous about grounding a moral,
philosophical, or political vision in so-called essentialist understandings of
what it means to be human, I offer two additional thoughts. First, I
understand that nervousness. To be human has too often beer. equated with
the kinds of characteristics, interests, and priorities associated with being
male, white, and heterosexual. When social regimes are constructed on top
of this slanted and limited view of what it means to be human, those who do
not fall under all three categories are vulnerable to stigmatization and
subordination. But, in my opinion, the solution to the suffering and
oppression that has undoubtedly emanated from racist, sexist, and
homophobic understandings of what it means to be human is not to give up
altogether on the concept of the human being as a source of moral and
political judgments about which social arrangements and practices are fair
and just. The better choice is to present and defend a more convincing and
nonoppressive conception of what it means to be human and to lead a fully
human life.

Second, I would urge those whose anti-essentialist proclivities are
so strong that they simply cannot accept the substantive content of even the
mildest and most open-ended form of human liberalism to think
pragmatically. That is, I would urge them to view the concept of "the
human," even if it is entirely constituted through forces of social
construction, as a politically useful tool.

The late philosopher Richard Rorty was one of the twentieth
century's most vociferous critics of universalism and, as such, he objected

62 Peter M. Cicchino, Building on Foundational Myths: Feminism and the
Recovery of "Human Nature": A Response to Martha Fineman, 8 AM. U.J. GENDER SOC.
POL'Y & L. 73, 84 (2000).

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2010] Martha Nussbaum, Essentialism, and Human Sexuality 19

to any effort that emphasized, either morally or politically, shared
commonalities that are constitutive of humans. For Rorty, there was nothing
to human beings that was outside of or separate from their contingent ties
and connections. As he explained it, "socialization, and thus historical
circumstance, goes all the way down. . . .[T]here is nothing 'beneath'
socialization or prior to history which is definatory of the human. ' 63

Rather than focusing on what might be universally true, Rorty
wanted us to talk about what might be useful.64 In particular, in the sphere
of politics, Rorty wanted to talk about what might be useful in creating a
more egalitarian and tolerant society with less discrimination and other
forms of group-based harms.65

It has always puzzled me, however, that for a pragmatic thinker
who claimed to be driven by the useful, Rorty seemed to underestimate the
pragmatic value of humanist talk. Even if liberal humanists like Nussbaum
overestimate the ability to which it is possible to speak of human
similarities in matters of sex and sexuality, encouraging everyone to
recognize in themselves the similarities in the sexual desires and
experiences of others is politically useful. It seems to me, in other words,
that Nussbaum's liberal humanism in matters of sexuality can be defended,
if nothing else, on politically pragmatic grounds. As already noted, much of
the political progress that sexual minorities have made in this country has
come about because a growing number of Americans now believe that,
when it comes to sexual desires, conduct, and relationships, what they share
with LGBT people is more important than what they do not.

It might be that an alternative political vision-one that does not
rely on capabilities that we share as human beings-could achieve similar
or even greater political gains. Until that vision is articulated and defended,
however, I think it is best, as a political matter if nothing else, for sexual
minorities to stick by the kind of liberal humanism defended by Martha
Nussbaum.

63 RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY, at xiii (1989).

64 RICHARD RORTY, PHILOSOPHY AND SOCIAL HOPE, at xxv (1999) ("The purpose of
inquiry is to achieve agreement among human beings about what to do, to bring about
consensus on the ends to be achieved and the means to be used to achieve those ends.").

65 See generally RICHARD RORTY, ACHIEVING OUR COUNTRY: LEFTIST THOUGHT IN

TWENTIETH CENTURY AMERICA (1998).