Liberalism, Development, and Gender: Responses to Papers


LIBERALISM, DEVELOPMENT, AND GENDER:
RESPONSES TO THE PAPERS

MARTHA C. NUSSBAUM*

I must begin by warmly thanking all the people here at Columbia
who made this Symposium possible. I feel immensely honored and grateful
for all of the time the participants spent with my work and for their acute
criticisms. I shall introduce my specific responses to the papers by saying
something about the ways that gender and sexuality figure in my work over
the years. Then, I shall move through the papers, grouping them by
thematic sections, but considering each separately to some extent, because I
really learned so much from each of them.

I. OVERVIEW: MY WORK ON GENDER AND SEXUALITY

My career as a philosopher has focused on two distinct types of
issues. Often, they seem very different, so different that graduate students
and other students who are attached to one or the other set of issues often do
not link them, although I myself always do.

First, there is philosophical reflection about the emotions, their
structure, and their role in human life and the ethical life. And, second,
there is normative political philosophy, where I have been working for
some time on the development of the "capabilities approach" that so many
people in this Symposium have talked about. The two projects do intersect,
clearly, in a number of ways. One area of intersection comes from the fact
that I hold that emotions have a complicated cognitive content and that they
are, therefore, shaped by social norms. They contain appraisals of what is
important, and those appraisals are, in turn, shaped not just by childhood
development but by normative views that we learn in our social and
political culture. That means that we have to think about how society does
shape them. And it also means that, to some degree anyway, it is in our
power to affect changes in that shaping. Certain forms of domination and
humiliation that might be very common might possibly be different in the

* Ernst Freund Distinguished Service Professor of Law and Ethics, The University
of Chicago. I am enormously grateful to Katherine Franke and Suzanne Goldberg for
organizing the Symposium, to Dean David Schizer for sponsoring it, and, above all, to all the
paper writers for putting in so much time on my work.



Columbia Journal of Gender and Law

next generation, and the emotions that sustain them would be different. So
we have to think about how to shape the emotions, not just how to control
them. And I think that it is one thing we learn when we think about the
emotions in a way informed by normative political philosophy: an insight
into the ways in which political structure and political norms may actually
influence the personality at a deep level.

Currently, in fact, my main long-term project concerns the political
emotions that support the institutions that would be required by my
capabilities approach. My wonderful editor, Terry Moore, who died two
years ago, said to me, "You know, you've written about capabilities, and
you've written about compassion, but why not bring the two together? Ask
how we can produce people who would actually build and sustain this
society you have in mind." That, of course, is an important thing to do, and
I am trying to figure out how to do it. The project, however, is not just to
talk about compassion, which is basically supportive of good political
institutions, although it may be narrow and uneven. There are, however,
some emotions that are particularly threatening to the operations of a decent
society, and we also need to talk about those: shame and disgust, in
particular, but I also think that anger has a very bad and excessive side. So
writing about political norms well requires thinking well about the emotions
that both support and threaten these norms.

On the other side, thinking well about emotions requires thinking
about certain issues that are also central in political philosophy: in
particular, narcissism and hierarchy. One of my great interests is thinking
about how people's emotions begin, early in a young child's life, as
narcissistic and self-focused, not animated by any sense of the other person
as a real person with real needs, and so on, and how, as a child matures, if
things go well, the child can become capable of sympathy and concern for
another person seen as a separate being who is not simply that child's slave.
But of course, things don't always go well, and narcissism remains I think a
very pervasive danger in the emotional life. Naturally, that leads into
politics. Such tendencies to narcissism may be influenced in various ways
by the political culture, and their presence has major political consequences.
As time goes on, I have gotten more and more persuaded that Gandhi was
absolutely right: the real conflict of civilization is inside each person. It is
certainly not the conflict between Islam and the West, but it is not even
simply the conflict between respectful people and dominating people within
a given society, although that is real and important. At a deeper level, as
Gandhi said, we must consider the conflict within each person, between the
tendency to dominate the other and to think of the other as a slave and the

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capacity for concern and respect. So my book, The Clash Within,' was
really all about that. Therefore, thought about gender norms played an
important role in that book, as I shall later describe.

My work on gender spans these two big categories: theory of
emotion and normative political philosophy. Let me briefly describe how
those concerns play out in several books. Sex and Social Justice,2 which
quite a few people of the papers mention, is a collection of essays. It is quite
heterogeneous, but it is held together by the aim of describing a certain kind
of liberalism, which is, I believe, also radical and to some extent informed
by queer theory. The capabilities approach is treated there, but so too are
more specific political matters such as justice for gays and lesbians, the de-
criminalization of sex work and so on. Throughout, I try to respond to some
criticisms feminists of various types have made of the liberal tradition in
political philosophy, in the process articulating my radical form of
liberalism, which I connect to Mill, to whom I actually also give a radical
and queer reading. I recently authored a paper for Mill's bicentennial called
Mill's Feminism: Liberal, Radical and Queer,3 and I really do think that
characterization makes sense, although Mill himself might be quite alarmed
by the word "queer," Victorian gentleman that he was. I believe that Mill,
like radical feminists, understood how hierarchy deforms not just practice
but also emotion and desire; he was determined to call into question the
norms of family life that produce deformed expectations and patterns of
desire. He also was resolutely determined to call into question conventional
categories of all sorts and to recommend spaces for experiments in living
that would be quite diverse, and that would be protected from both legal and
societal intervention by strong norms of liberty. That is the sense in which
his feminism has a queer aspect. And although he didn't write about sexual
orientation, as Bentham did-Bentham actually had very interesting things
to say about sexual orientation 4-Mll's general radicalism about tradition
and convention pushed his thought in a direction that it is appropriate to call
queer.

I MARTHA C. NUSSBAUM, THE CLASH WITHIN (2007) [hereinafter THE CLASH
WITHIN].

2 MARTHA C. NUSSBAUM, SEX AND SOCIAL JUSTICE (1999).

3 Martha C. Nussbaum, Mill's Feminism: Liberal, Radical and Queer, in JOHN
STUART MILL: THOUGHT AND INFLUENCE, A BICENTENNIAL REAPPRAISAL (Georgios
Varouxakis & Paul Kelly eds., 2010).

4 Jeremy Bentham, Offenses against Oneself (1785), in 3 J. HOMOSEXUALITY 389,
4 J. HOMOSEXUALITY 1 (1978), available at http://www.columbia.edu/cu/lweb/eresources/
exhibitions/sw25/bentham/index.html.

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Women and Human Development' was my first systematic book-

length account of the capabilities approach, which I elaborated more fully

and, I think, in some ways more adequately, in Frontiers of Justice.6 But it

was also a book about women and gender issues. Why and how did the two

concerns come together? In Women and Human Development, I focused on

women's situations both for their intrinsic interest and importance, and also
in order to use those issues as a test of standard theories of development,
showing that the inability of those theories to treat women's inequality
adequately is a sign of a more general inadequacy in those theories. One of

the ways in which you quickly see how the GNP per capita model of
development fails is to see that it doesn't notice the inequalities women
suffer both in the workplace and in the household. You also can test
utilitarian models by noticing that models which are based on people's
existing preferences are often biased in the direction of the status quo, and
will often validate what are known as adaptive preferences; that is,
preferences that are adjusted to a bad state of affairs. Women are a very

standard example in the adaptive preferences literature.7 And my

collaborator, Amartya Sen, focused on this case in his own important
writing on adaptive preferences. Women, he argues (and demonstrates

empirically), often adopt images of the proper woman, and then report
satisfaction with that situation, saying, for example, "We prefer not to have
more education." But that might show a limitation of the preference-based
model rather than a limitation of education for women. It was for that sort

of reason that my focus on women had a two-fold role to play in my
argument.

8

My opponent throughout that book was both economic and

classical utilitarianism, which still dominates the world of development and

policy-making. But I also criticized some aspects of mainstream liberal
theory, in the chapter on the family.9 In that chapter I said that John Rawls
had adopted too much of the old public-private distinction, even though he

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

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

6 MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY,

SPECIES MEMBERSHIP (2006) [hereinafter FRONTIERS OF JUSTICE].

7 On all of this, see WOMEN AND HUMAN DEVELOPMENT, supra note 5, chs. 12.

8 See also Martha C. Nussbaum, Capabilities as Fundamental Entitlements: Sen

and Social Justice, FEMINIST ECON., Vol. 9.2, 2003, at 33.

9 WOMEN AND HUMAN DEVELOPMENT, supra note 5, ch. 4.

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says that that's not what he's doing. My conclusion was that Rawls had not
been sufficiently critical of the internal distribution that is going on in the
family. Although he grants that the family is a political institution, indeed
part of society's "basic structure," he insulates it to a degree from the
demands of justice.10

The focus on India in that book was dictated, first, by my love of
India. And I think that's extremely important, and it is important in all my
work subsequently. But it is also because I thought that it was very
important, in doing my type of feminist theoretical work, to get real and
have a sense of one nation in all of its historical complexity, rural-urban
differences, regional differences, religious differences, and so on. I was
discontent with books that had one example from Iran and one example
from China, without giving any sense that the author really knew the history
or political complexities of those countries. And so I chose India because I
already loved it and I'd spent a lot of time there and thinking about it. But
there's a methodological point, too, which comes out in some of the papers
in this Symposium: that is, my interest in using deep immersion in a
particular situation in order to portray the whole range of problems that one
might encounter there. Immersion permits the theorist to get the right
problems onto the table, not just the ones that she's most familiar with back
home; it also shows how thinking about problems in any context requires
detailed familiarity with that context. If one were going to implement a
similar approach in another place, one would have to just do that kind of
detailed work in that place. That's why I was so delighted that some of the
papers had done this rich kind of work-Tracy Higgins" about South
Africa, Amrita Basu12 about India, and Aili Tripp13 about quite a number of
countries-because I think it is only that detailed kind of work that would
enable one to even notice what capabilities are involved and how they
might be implemented, but also how they might be further specified at a
concrete level.

10 On all of this, see id., ch. 4.

I1 Tracy E. Higgins, Feminism as Liberalism: A Tribute to the Work of Martha
Nussbaum, 19 COLUM. J. GENDER & L. 65 (2010).

12 Anmita Basu, Who Secures Women's Capabilities in Martha Nussbaum's Quest
for Social Justice?, 19 COLUM. J. GENDER & L. 201 (20 10).

13 Aili Mar Tripp, Creating Collective Capabilities: Women, Agency and the
Politics of Representation, 19 COLUM. J. GENDER & L. 219 (2010).

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Here I want to mention the Human Development and Capability
Association, which is about to hold its sixth annual meeting.1 4 One of the
reasons that Sen and I founded it-or perhaps I should say that we agreed to
serve as figureheads, as it was actually a group of younger scholars from a
range of nations and disciplines who did all of the work-was to bring
people together across regional and national boundaries, across disciplinary
boundaries, and across boundaries of academic rank and age and so on, to
talk about these issues. The association also aims to promote dialogue
between academics and development practitioners. And it was precisely
because we saw that the rich contextual work was so crucial-and
interdisciplinary work as well-that we wanted to have this international
association, which now has 700 members from seventy different countries.
Our annual meetings-plenary papers published in the Journal of Human
Development and Capability--are rich databases of concrete approaches to
implementation but also to further specification.

Now on to other books more quickly. Frontiers of Justice was not
discussed by very many of the papers (though Janet Jakobsen's includes a
splendid discussion of it 15), but I view it as my best account of the

capabilities approach. It addressed some key questions I had not previously
addressed, such as whether we want an equal level of capability for all or
only a threshold. At the same time, a lot of detailed philosophical points are
much more fully worked out in that book than in Women and Human
Development. But another thing that is important is that it is a book that is
entirely about power really, and this has come up in quite a few of the
papers. It is a book that says a certain initially very attractive part of the
liberal tradition, namely the social contract theory, does not go deep
enough, if what we want is to criticize differences of power that are rooted
in people's very physical capacities. The social contract tradition, in its
history, was aiming to criticize artificial hierarchies of wealth, rank, and
class, and that it did very well. And I think, up to a point, you can adapt it,
as John Rawls did, 16 to criticize artificial hierarchies of race and gender.

However, when you get to the issues that I call the three frontiers of
justice in today's world-justice for people with disabilities, justice across
national boundaries, and justice for non-human animals-we find that the

14 Human Development and Capability Association, Home Page,

http://www.capabilityapproach.com (last visited Feb. 1, 2010).

15 Janet R. Jakobsen, Queer Relations: A Reading of Martha Nussbaum on Same-

Sex Marriage, 19 COLUM. J. GENDER & L. 133 (2010).

16 JOHN RAWLS, A THEORY OF JUSTICE (2d ed. 1999).

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social contract tradition did not address them well enough, and sometimes
not at all. The idea that there's a contract between people who are stripped
of all artificial advantages, but are posited as roughly equal in physical and
mental capacities, is not going to do enough work when we get to these
three issues, and Rawls knew that. He actually said that his theory faced
limitations in just those places.17 We have to think, then, how to imagine
justice between people and creatures who are systematically unequal in
physical and mental powers. And that's a complicated exercise, but I try to
argue that a version of the capabilities approach goes further, at least
there-I don't claim it goes further everywhere-than Rawls's very great
theory.

Turning now to the books on emotions-Upheavals of Thought18

and Hiding from Humanity'9-gender issues were quite salient in both of
them, but particularly in the latter. Hiding was actually inspired by
reviewing William Ian Miller's very interesting book, The Anatomy of
Disgust,2° a very perceptive book about disgust by a law professor-but it
said nothing about law. I thought to myself there are a lot of places where
disgust is playing a prominent role in the law, and it would be interesting to
think about that. So that's how I got started on that book. I begin by
identifying the practical importance of disgust in a number of areas of law,
including various parts of criminal law such as the reasonable provocation
defense, sodomy laws, etc., and then going on to consider obscenity law. I
then look at theories in which disgust plays a central role as a criterion of
legal regulability: Devlin's famous theory,2 I but also, more recently, that of
Leon Kass, who was until recently Chair of the President's Council for
Bioethics. Kass wrote an influential article called "The Wisdom of
Repugnance," arguing, like Devlin, that widespread disgust for a practice

17 id.

18 MARTHA C. NUSSBAUM, UPHEAVALS OF THOUGHT (2001).

19 MARTHA C. NUSSBAUM, HIDING FROM HUMANITY (2004) [hereinafter HIDING
FROM HUMANITY].

20 See WILLIAM IAN MILLER, THE ANATOMY OF DISGUST (1998); and Martha C.
Nussbaum, Review of William Ian Miller's The Anatomy of Disgust, THE NEW REPUBLIC,
Nov. 17, 1997, at 32-38.

21 LORD PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (Oxford U. Press 1996)
(1968).

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was a sufficient ground to forbid that practice under law.22 These were the
theories at which I took aim, and I tried to reach some of those conclusions
of Mill's On Liberty23 through a different route. I am not very satisfied, in a
number of ways, with the arguments of On Liberty, and so I thought that by
showing, through a detailed conceptual and empirical study of those two
emotions, why disgust and shame were unreliable and how they operate to
stigmatize and subordinate, we could get to some of Mill's conclusions by a
different path, delving more deeply into those emotions.24 Gender was
important in that book because I discussed both sexual orientation disgust
and misogynistic disgust, not only those, but those are two important cases.

My other books that deal with emotions are also pertinent in a more
indirect way: The Fragility of Goodness25 and The Therapy of Desire,26

which consider ancient Greek and Roman views of emotions; Love's
Knowledge,27 which investigates the relationship between literature and
normative ethics; and Poetic Justice,28 which looks at the role of
imaginative literature and the emotions it construct in the law. On the
political philosophy side, Cultivating Humanity,29 which confronts issues
involved in the broadening of traditional liberal arts education, argues that
gender studies supply a crucial part of the preparation of young citizens.
The Clash Within,3 ° a study of religious violence in India, looks closely at
the baneful role played by stereotypes of humiliated masculinity in fueling
violence against Muslims, and, particularly, Muslim women. And last
year's Liberty of Conscience31 develops some norms involved in the legal

22 Leon Kass, The Wisdom of Repugnance: Why We Should Ban the Cloning of

Human Beings, THE NEW REPUBLIC, June 2, 1997, at 17, reprinted in THE ETHICS OF HUMAN

CLONING 3 (Leon Kass & James Q. Wilson eds., 1998).
23 JOHN STUART MILL, ON LIBERTY (Oxford 2008) (1859).

24 See HIDING FROM HUMANITY, supra note 19, ch. 7 for that critique.

25 MARTHA C. NUSSBAUM, THE FRAGILITY OF GOODNESS (2d ed. 2001).

26 MARTHA C. NUSSBAUM, THE THERAPY OF DESIRE (2004).

27 MARTHA C. NUSSBAUM, LOVE'S KNOWLEDGE (1990).

28 MARTHA C. NUSSBAUM, POETIC JUSTICE (1995).

29 MARTHA C. NUSSBAUM, CULTIVATING HUMANITY (1997).
30 See THE CLASH WITHIN, supra note 1.

31 MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE (2008) [hereinafter LIBERTY OF

CONSCIENCE].

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protection of religious freedom and equality, focusing in the final chapter
on the issues of gender and sexual orientation.

My most recent book, From Disgust to Humanity: Sexual
Orientation and Constitutional Law,32 was released this January. I am very
grateful to the Symposium participants for pouring over early manuscripts. I
never expected that, but I was very grateful and happy. The new book is, in
a way, a continuation of the older project on shame and disgust, except that
the older project focused for the most part on the criminal law, and here I
focus on constitutional law. It is for a series on constitutional law, and so
that is its focus. And I am trying, as is the spirit of that series that Geof
Stone is editing, to address the general public. And so rhetoric becomes
important, and I will talk more about that later.

II. FEMINISM AS LIBERALISM

The papers in this section explore the form of liberalism that I have
tried for a long time to develop, a form that learns from radical feminism
and also from queer theory, but that also maintains the classic liberal
commitment to equality and non-hierarchy, and also to the idea that each
person ought to be treated as an end, rather than as a mere means of the
ends of others. I take the animating vision of liberalism to be its anti-
feudalism and anti-monarchicalism-the eradication of all class-based and
caste-based distinctions in favor of a politics of equal respect and equal
liberty.

Turning, first, to Carlos Ball's 33 paper: I think it is a marvelous and
sensitive exploration of the role of commonality and universality in my
work in political philosophy, and my ideas about what it is, and what it
isn't. Ball puts together extremely nicely so many things that I say in
different places. One thing I want to bring out just a bit more explicitly than
Ball did is the distinction between descriptive universalism and normative
universalism. I think that is extremely important and fundamental, and
Amrita Basu34 did talk about it some in her paper. But I think it is important
to say that I do not ever think of myself as announcing a universal theory of
what human nature is or what women's experience is, or anything like that.

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

AND CONSTITUTIONAL LAW (2010) [hereinafter FROM DISGUST TO HUMANITY].

33 Carlos A. Ball, Martha Nussbaum, Essentialism, and Human Sexuality, 19
COLUM. J. GENDER & L. 3 (2010).

34 Basu, supra note 12, at 201.

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First of all, it is dubious that there are such universals. But even if there
were, they couldn't do any normative work without a lot of further
argumentation. The fact that a lot of human beings, and perhaps all, have
the capacity for cruelty, doesn't give us any good normative reasons to
support the development of the capacity for cruelty. So I think we get norms
from norms and not from the way things are. The descriptive does not entail
anything more than all that by itself, although it may show us the materials
we have to work with and some tendencies we may need to guard against.

So what I am doing instead is defending certain norms universally
as good things for all, cross-culturally. And that really doesn't entail that I
think people's experiences are very similar, although, as Ball suggested,
certain similarities that we do observe play some role in thinking about
norms, in a limited way: for example, understanding what people's
nutritional needs are. Nutritional need (controlling for size, activity level,
and so forth) is something that is descriptively relatively universal. And
then, of course, that account plays some role in talking about what a just
health care scheme is and what a just nutritional policy is. But it is
important that I do not simply read norms off from facts, and very few areas
are informed by facts in any simple way.

I used to have a category called basic capabilities: the innate
abilities with which people come into the world. And I used to say that,
although the capabilities on my list are norms that we're striving for, to
which people are entitled because of their human dignity, still, we ascribe
entitlements to people on the basis of their possession of a lower-level
ability, a basic capability, so-called, for reaching that higher developmental
level. Now already, in my first article on that, in 1988, I immediately said,
"Well, the potential for denying wrongly that people have these innate
abilities is enormous, so we really shouldn't let politicians argue about
which people do or don't have them. We should proceed as if everyone has
those basic capabilities." 35 So I resisted a political use of the notion, but I
still was using the notion. By now I've rejected it, utterly, for the following
reasons. I have been thinking about people with disabilities and thinking
about the tremendous importance of extending to them the same political
entitlements as others, and applying the same norms as to others. I realized
that there's just no point, any more, in using the category of basic
capability, because a person with severe cognitive disabilities may not have,
as an individual, the capacity for speech or the capacity for practically all of
the things on my list. Nonetheless, it is my view (and this is something I

35 Martha C. Nussbaum, Nature, Function, and Capability: Aristotle on Political
Distribution, OXFORD STUD. IN ANCIENT PHIL., Supp. Vol. I at 145 (1988).

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said in a conference that Eva Kittay organized last September, whose
proceedings were included in a recent issue of Metaphilosophy) 36 that
people with very severe cognitive disabilities, any child that is born of two
human parents, short of someone in a persistent vegetative condition or an
encephalic person-anyone who exhibits some form of striving and
awareness-is normatively entitled to all of the capabilities on the list. Now
how do they get there if they don't have the basic capabilities? Well,
through some combination of guardianship and assistance. And so, for
example, I even hold that people with severe cognitive impairments retain
the right to vote. Maybe the person who actually does the voting will have
to be a guardian. Similarly, I hold that they have a right to jury service,
although that role may again have to be played by a guardian. You see that
I've gone very far in the direction of rejecting the category of basic
capabilities and, therefore, toward utterly rejecting descriptive universalism.

Now it is a big issue whether the role of the species is useful any
more, and I think it is. I think, for example, that it is important to point out
that a person with severe cognitive impairments is still human: she is not at
all like a chimpanzee, and does not have the option of going off and living a
happy life in a chimpanzee community, an option wrongly suggested by
some utilitarian comparisons. The human community is her home, and she
therefore needs to have the central human goods. In talking about non-
human animals, as well, I want to preserve a role for the species.37 But I
don't want to go into that here because I think it would take too long and it
would take us far away from our topic. But now, back to Carlos Ball's
paper: where sexuality is concerned, what I defend normatively is a
universal right to liberty and sexual choice. And I defend that without at all
presuming that sexuality is similarly configured in all cultures. And of
course, as he said, I am perfectly aware that it isn't, 38 and I am siding very
strongly with the social constructionists on that question. In fact, the whole
point of the protection of big spaces around the person is to permit many
different projects to flourish, so long as the equal rights of others are not
damaged. I believe sexuality in that respect is similar to religion. That is, to
defend religious liberty as a universal norm does not at all entail that you
think the search for meaning, whether religious or secular, takes a similar
form in all societies, or even in all parts of your society, and of course it

36 See Martha C. Nussbaum, The Capabilities Of People With Cognitive

Disabilities, 40 METAPHILOSOPHY 331 (2009).

37 See FRONTIERS OF JUSTICE, supra note 6, ch. 6.

38 Ball, supra note 33, at 8-9.

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doesn't. But the more variety there is the more important it will be to
defend those spaces around the person where the nonstandard project can
flourish, and to defend them on equal terms for all.39

Now of course, that's not so simple because-and I think Ball
nicely gets at this-there are some ways of framing the universal norm that
skew policy in the direction of a standard and well-known lifestyle rather
than something else. The same problem exists in the area of religion, as we
know, because the "free exercise of religion" was initially understood in a
pretty Protestant way, as involving the freedom of belief and maybe also the
freedom of a standard type of religious practice. Things that came along
later, such as the understanding that some religions involve a whole
communal way of life, as in Wisconsin v. Yoder,40 or that some religions
involve a particular relation to the land, as in Native American cases, those
were hard-won struggles to reformulate and somehow rethink the norm of
free exercise. And I don't think we've yet finished that process; the norm of
what religious liberty is has to be rethought continually, in keeping with our
growing understanding of the variety that exists within our society and the
many different projects that people are pursuing.

I think that has to happen with sexuality. We start perhaps with the
"vanilla" policy of protecting same-sex couples who want to join the
bourgeois mainstream. We have not even reached this point as a nation, but
already, we can see that that's much too underprotective, it is much too
narrow, and it is really unfair. But then, the question is how exactly do we
formulate the norm so as to accommodate a much wider range of sexual
choices, and I think that's a project that we are still working on. Lawrence
v. Texas4

1 was quite a mess because at times the opinion speaks about free
people, and so on. But then, there is also talk of relationships. As several
here have said or written, there are so many different things in that opinion
that you can't really tell how far the notion of sexual liberty is being
rethought or extended. But the Fifth Circuit, at least, said that Lawrence
recognizes an individual liberty right that entails the right to purchase a sex
toy.42 I think that's progress in the right direction, and I think we should

keep on rethinking the norm. But the individual liberty right ought not to be

39 See LIBERTY OF CONSCIENCE, supra note 31, chs. 1-3.

4o402 U.S. 994 (1971).

41 539 U.S. 558 (2003).

42 Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 743-44 (5th Cir. 2008),

petition for rehearing en banc denied, 538 F.3d 355 (5th Cir. 2008). 1 discuss this and other

cases in FROM DISGUST TO HUMANITY, supra note 32, ch. 6.

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limited to people who only choose a certain kind of relationship or have a
certain kind of intimacy. So I think that Ball is quite right to see that, even
though my universalism is normative, the norm itself could be badly
articulated if we have too thin a sense of the descriptive variety. I am trying
to struggle with that.

Now just to say a few things more about how a normative view like
mine is sensitive to plurality and difference, this is something I say in
several places.43 But I think it is worth putting that on the table here. First of
all, I think it could be important, and I loved Carlos' quote from Peter
Cicchino, 44 to say that it is in a self-critical and open-ended spirit that the
list is put there on the table. I think it is important to put out something that
can be discussed. But it is always subject to revision and contestation.
Second, the list is very abstract. And I think it is good for it to be abstract,
because that leaves it open to different societies and different groups within
societies to specify those abstract norms in a way that suits their history and
traditions. And here Alice Kessler-Harris's paper 45 is very relevant: a reason
that any person who's involved in this topic should do good historical work
is that this work is invaluable in thinking through what we want in our
society, what concrete shape that norm should take. An example that I often
give is that the free speech right that American's have is quite different
from the free speech right that Germans have. In Germany, the
dissemination of anti-Semitic literature and the making of anti-Semitic
speech is all illegal. In the United States, such things are held to be
protected by the First Amendment. And I think both are right choices for
the different histories and different cultures. So you really have to know the
history well before you get a sense of what you want to defend when you're
actually putting an abstract norm into a constitution.

The next thing to emphasize is that I think the list is put out for
political purposes. It is part of what Rawls call political liberalism. 46 So it is
a partial moral conception, as he puts it, that is explicitly introduced for
political purposes only, and it does not preclude people having lots of
different accounts of the different things in their more comprehensive views
of life. It is meant the be the object of a consensus among people who are

43 For example, in FRONTIERS OF JUSTICE, supra note 6, and Capabilities as

Fundamental Entitlements, supra note 8.

44 Ball, supra note 33, at 18.

45 Alice Kessler-Harris, Legal Theory & Gendered History, 19 COLUM. J. GENDER
& L. 125 (2010).

46 See JOHN RAWLS, POLITICAL LIBERALISM (2d ed. 2005).

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different, but we hope that they can meet at this place, very much in the
way that the Universal Declaration of Human Rights sought a consensus
among people who held very different views of human life. It is meant not
to negate these differences but to be the object of a consensus among the
people who differ.

Then, the fourth point, I think by saying that the appropriate goal is
capability or empowerment and not actual functioning, we protect pluralism
in yet another way. There are a lot of people who will accept, happily, the
normative importance of a certain capability who wouldn't like to use the
function. The old-order Amish don't want to participate in politics. But they
don't object to being citizens of a country that offers the right to vote to all
citizens. People who hate religion, and would certainly object to any kind of
religious functioning, are not unhappy to be in a society that gives people
the freedom of religion. Making capability, not functioning, the goal
protects pluralism.

Fifth, the major liberties that protect pluralism are on the list. And
by having a universal statement that these are valuable, we give pluralism a
very crucial kind of defense. If you think about how you could have
meaningful pluralism of different ways of life without strong protection of
the freedom of expression, the freedom of association, the freedom of
religious exercise and belief, it is very hard. So I think by defending those
and saying we defend them for all, then precisely you give the different a
place to speak and a place to emerge.

And then, just one more final point, the view is intended for
persuasion, not coercive implementation. It is put out there as something in
the international political arena that people can debate that they may be
persuaded by. They may want to use it in a constitution or something else.
But it is not meant to be implemented against the will of the people. And so
when Alice Kessler-Harris asks, as she did in her Symposium lecture,
'Well who's going to say what the good is, 'A7 well the answer that I have
given is the people will say that when they make their constitution, and
when they choose the structures of implementation for that constitution. I
am very opposed to any kind of forcible intervention in the affairs of any
other democratic society, except in the most extreme cases of genocide and
gross crimes against humanity. If the government is illegitimate, there may
be a weaker standard. But if we're thinking about nations that have a
reasonable level of legitimacy, then I think, you know, military intervention
is virtually always off the map. And you know, even when intervention
might possibly be defended on moral grounds-let's say we decided that

47 See Kessler-Hanis, supra note 45, at 126, for extended discussion.

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the genocide in Gujarat was genocide, as I believe it was48-still, even then,
prudentially, it would be exceedingly stupid for any other nation to march
its troops into Gujarat. So even when it could be morally defended, usually,
it's a very bad idea.

Now I want to now move on to Nancy Levit's fascinating paper.49 It
pinpoints exactly the problem I have already raised about how to frame a
general norm that is not exclusionary. I found particularly interesting
Levit's discussion of rhetoric and persuasion. Her account articulates a way
in which I found myself deeply torn as I was writing From Disgust to
Humanity. On the one hand, I have very strong views about sexual liberty
that entail that sex work should be decriminalized, that polygamy of a sex-
equal kind-such as the sort that Elizabeth Emens discusses in her work on
polyamory ---should be legal. So I have views that in terms of the
mainstream are far out. And if I put those views out there in the new book,
it could undermine the persuasiveness of my argument for the things that I
think maybe I can persuade people of, about same-sex marriage and so on.
So I went through some torment on this with different drafts and the final
product is much more out there than the initial drafts where I thought, "Well
maybe I can say, 'Oh, well, maybe the state could regulate incest and
polygamy."' I've moved away from that, because I really don't think the
arguments in that area are good, and so I've gone back to openly stating
what I think. I also decided to include a final chapter about sex toys,
bathhouses, and public sex because I really feel it is very important to say
what I think about sexual liberty and to frame it broadly. Whether that will
make the whole argumentless persuasive, I don't know. But, you know, I
grew tired of being cautious. That's not my nature.

Furthermore, my overall theoretical approach entails this bolder set
of conclusions. What I am doing is asking people to think about sex the way
we've learned to think about religion; that is, something where we should
give people plenty of spaces to conduct experiments in living, even if they
don't like what the people are doing. Once, that was a very hard case to
make in the area of religion. People thought, "Oh, these practices are
satanic, and we ought to kick them out of Massachusetts," and so on. But by
now, we've kind of accepted the importance of respecting people who have

48 See THE CLASH WITHIN, supra note 1, ch. 1.

49 Nancy Levit, Theorizing and Litigating the Rights of Sexual Minorities, 19
COLUM. J. GENDER & L. 21 (2010).

50 See Elizabeth Emens, Monogamy's Law: Compulsory Monogamy and

Polyamorous Existence, 29 N.Y.U. REv. L & Soc. CHANGE 277 (2004).

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beliefs and practices that the dominant group rejects. So what I am asking
people to do is to think that way about sex. But I think it is actually hard for
people to think about things that they are really scared of and that arouse
deep emotions. So I'm hoping that I haven't totally lost my audience, but I
have rewritten the book in ways that wrestle with Nancy Levit's question.

Tracy Higgins presents a very accurate and fine description of my
position on liberalism.5' But let me just say what I think of the liberal
tradition. As I have mentioned, I think the core idea of the liberal tradition
is anti-feudal and anti-monarchical. It is all about overturning wrongful
hierarchies of power in order to assert the equal dignity and equal freedom
of each person. Seen from this viewpoint, liberalism always should have
criticized the hierarchy of power in the household. And I think Mill was
entirely right here: it was just simply defense of one's own particular
privilege and shortsightedness and just badness that led all of the liberal
theorists to neglect the household as a place where unjust power prevails.
Mill rightly says, "How can they, in good conscience, attack all of these
artificial hierarchies, and then say, 'Well, just in virtue of being born a male
you get all sorts of unearned privileges?' That is just feudalism., 52 I think
Mill was right to say that a critique of the family was part of the liberal
project all along, only it was not executed because people were defending
their own power. And so I think the public-private distinction, although it's
a big deal for a lot of the liberal theorists, was not an integral part of the
deepest aspect of the liberal project seen from the point of view that I've
just stated. 3

There is another distinction that I think is important in the liberal
project, and that is the one that Rawls draws attention to-the distinction
between the political doctrine that shapes our shared institutions and the rest
of the comprehensive schemes of life that we all differently pursue.5 4 That

51 See generally Higgins, supra note 11.

52 JOHN STUART MILL, THE SUBJECTION OF WOMEN 11, 87 (Susan M. Okin ed.,

Hackett 1988) (1861).

53 For my critique of that distinction, see Martha C. Nussbaum, Sex Equality,
Liberty, and Privacy: A Comparative Approach to the Feminist Critique, in INDIA'S LIVING

CONSTITUTION: IDEAS, PRACTICES, CONTROVERSIES 242 (Zoya Hasan, Eshwaran Sridharan &
Ratna Sudarshan eds., 2002). For a shortened version, see Martha C. Nussbaum, What's
Privacy Got to Do with It? A Comparative Approach to the Feminist Critique, in WOMEN
AND THE UNITED STATES CONSTITUTION: HISTORY, INTERPRETATION, PRACTICE 153 (Sibyl A.

Schwarzenbach & Patricia Smith eds., 2003).

54 JOHN RAWLS, POLITICAL LIBERALISM (1993).

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is not the same as the public-private distinction, because it doesn't say the
home is a special place or that it is off limits to politics and so on. But it
does say that there are some things that are the business of government
because we're all equally included in them and we all share them, and then
there are other things that are rightly not gone into by government such as
people's different religions, their different comprehensive conceptions.
Here there is room for something like the notion of privacy to emerge, but
to use the word "privacy" I think would be so confusing and misleading. I
don't like to use that word at all. So I think, in answer to Higgins I would
say that it's not like I've taken a tradition that's got all these flaws, and then
I've just fixed them. I think that all along there was something deep in it
that was going in the right direction, but the shortsightedness of many
theorists stopped them from seeing the full implications of their principles.

III. GENDER AND DEVELOPMENT

Of course much of my work on gender has been in the context of
thinking about the normative goals of development policy. A lot of the
same issues about descriptive and normative universalism and so on come
up in this area. My claim was never that all women share certain
characteristics or that all women share certain experiences, but rather that
certain universal norms are good things to strive for everywhere. But of
course, as in the other area, it is very important to actually look around and
see the variety of people's lives, so that you don't frame the universal norm
in too narrow a way. And so for me, learning about the varieties of family
structures, the varieties of women's work and so on, was extremely
important, and I continue to learn from the wonderful comparative work
that people here and elsewhere are doing on these questions. One reason I
founded the Center of Comparative Constitutionalism 55 is that I think that's
how we start to learn much more about the relationship between experience
and political norms.

Amrita Basu's paper rightly asks about the limits of state action and
the importance of civil society and social movements.56 I am very grateful
to her for reading me so closely and precisely. Let me now try to face her
question about why I am so focused on the state. There are several reasons
for that focus. First, it reflects my longstanding interest in constitutional
law. I mean, I think of these political principles quite increasingly as the

55 University of Chicago, Center of Comparative Constitutionalism, Mission,
http://ccc.uchicago.edu/mission.html (last visited Feb 1, 2010).

56 See generally Basu, supra note 12.

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underpinning for constitution making and constitutional interpretation in a
variety of societies. And I am very interested in comparative
constitutionalism. I am interested in both the Indian and U.S. constitutional
traditions. And so of course, then, inevitably, I am focused on the nation
and what a nation's political structure does to implement and make real the
capabilities. One place where I have been working that out recently was in
my Supreme Court Foreword in the Harvard Law Review, where I argue
that the U.S. constitutional tradition had a very uneven record vis-A-vis the
capabilities approach.57 But certainly, in the term that I was asked to write
about, which was 2006, there was an alarming falling away even from the
sort of concern for equal capabilities that our tradition has had in some
areas, particularly in interpreting the Equal Protection Clause of the
Fourteenth Amendment. Instead of asking real questions about what people
are actually able to do and to be, there has been a recent tendency to assume
a posture of what I call "lofty formalism," from which these questions about
capability cannot even be seen. In short, then, I am interested in questions
about constitutionalism and the state, and I write about them because of that
interest, not because I don't think the other questions are important. And I
assume that there are lots of other people who are going to do the other
project, Basu prominently among them.

But there is another deeper and more philosophical reason for my
focus on the state, and that is my adherence to political liberalism, which I
have already mentioned. I think that in a nation where people have many
different reasonable comprehensive conceptions of the good, we are not
justified in framing, for political purposes, a fully comprehensive doctrine.
Instead, we ought to seek political principles that can be the object of an
overlapping consensus among people with many different comprehensive
views of life, religious and secular. This will require abstemiousness, since
we should not use metaphysical, epistemological, or ethical notions that are
not broadly shared (for example, the notion of the soul, or the notion of
original sin, or the notion of self-evident truth).

But many social movements, rightly, are imbued with the spirit of a
given comprehensive doctrine: they might be Gandhian, or they might be
religious in some other way, or they might be animated by the spirit of
some secular comprehensive doctrine, such as Marxism. Such movements
can be tremendous supports, not only for people's lives but also for political
progress and progress toward justice, but they shouldn't ever, in all of their
comprehensive (and therefore divisive) specificity, enter straight into the

57 Martha C. Nussbaum, Foreword, Constitutions and Capabilities, "Perception"

against Lofty Formalism, 121 HARV. L. REV. 9 (2007).

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framing of the political principles themselves, because that would be to
establish a given comprehensive doctrine and, inevitably, to disestablish
some others that do not agree with it. So that's another reason why, as a
political thinker, I don't focus on social movements.

Sometimes that issue about pluralism and political liberalism does
not pose a problem. You could probably take many of the women's
movements in India and put most of what they are asking for straight into
the political principles and not feel that any problems have been created,
since they are really seeking a full realization of the rights women have
already been granted in the Constitution. But if you think about something
like the faith-based initiatives in our country, where there's a social
movement linked to government, then I think it's quite problematic. Such
movements privilege certain religious positions and marginalize others and,
of course, then, marginalize non-religion. I think it is a scary thing about the
new administration that they want to continue this practice, and I am very
disturbed about the whole issue. So I think social movements, from the
point of view of the political, always have to be kept at a certain distance, at
least until we figure out whether their content is something that we can all
share without any kind of marginalization or subordination.

During the discussion at the conference, Basu emphasized, agreeing
with me, that women's movements are often very consonant with the
political principles embodied in the capabilities approach. I agree with that,
and that was my reason for thinking that much of what they aim at could
straightforwardly be embodied in a political conception.

Basu also made the valuable point that many social movements, to
the extent that social movements are internally pluralist, create arenas in
which contestation and debate takes place, fostering deliberation about
issues of social justice. I agree with this too. Not all social movements
foster debate and contestation: the shakhas of India's RSS are a horrifying
example of how a powerful social movement can foster group-think,
prejudice, and uncritical devotion to an aggressive ideal.58 I know Basu
agrees. But if we are dealing with social movements of the sort she
mentions, we should certainly applaud the way in which they can reinforce
deliberation. In my work in India I've noticed that the sort of education
fostered by the women's movement does much better in promoting
deliberation, on the whole, than does the education in government schools,
dominated as it is by rote learning. '9 The educational tradition in Bengal
started by Rabindranath Tagore, which I love, uses the arts to stimulate

58 See THE CLASH WITHIN, supra note 1, ch. 5.

'9 See id., ch. 8.

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reflection and self-expression, and this type of education, in India today, is
fostered almost nowhere else but in women's movements.6°

Basu then claims that it is difficult to think about the creation of
constitutions that have really embraced the goal of prohibiting
discrimination on grounds of sex and sexual orientation, without thinking at
the same time about social movements.61 Especially if one thinks about
recent attempts at formulating constitutions in Eastern and Central Europe
and in South Africa, those provisions that prohibit discrimination are there
by virtue of struggles of social movements to put them there. I agree with
this as well. Social movements have been extremely important in both
creating and sustaining good constitutions.

I grant Basu all of these points, then. But I continue to think that
one must recognize that not all of what is fostered even in the best social
movements can automatically go into your constitution, because of
pluralism. And I also think it may turn out that some of the social
movements will make it hard for you to get things that ought to go into your
constitution. I think it is absolutely amazing and wonderful that South
Africa got a right to nondiscrimination on the grounds of sexual orientation.
I think it could not have been taken for granted, however, given the nature
of the social movements involved. It took a lot of work by individual
leaders, lawyers, political leaders, and so forth, who insisted on that in the
very painful debate that they had. And, by the way, that debate was very
much inflected by ideas about disgust. Justice Albie Sachs of the South
African Constitutional Court, and one of the leading freedom fighters and
constitutional framers, just came to our university, and he was talking about
his own self-criticism when he realized that he felt disgust for gay people
when he was asked to march in the Gay Pride Parade. He began to reflect,
and ended up doing a lot of valuable thinking about stigma and
marginalization. So the South African Constitution owes a lot to such astute
individuals who are already very self-critical, who are already questioning
gender norms-because after all in Sachs's autobiography, he makes it
clear that he sees his own political stance as one that challenges entrenched
notions of masculinity. 62 He is complicating notions of gender in everything
he does. So I think you needn't have gotten that, and social movements by
themselves would not have produced that. In the social movements of the

60 See KATHLEEN M. O'CONNELL, RABINDRANATH TAGORE: THE POET AS

EDUCATOR (2002); and THE CLASH WITHIN, supra note 1, ch. 3.

61 Basu, supra note 12, at 210-16.

62
ALBIE SACHS, THE SOFT VENGEANCE OF A FREEDOM FIGHTER (2000).

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Vietnam War era, we could see valuable ideals being linked to a remarkable
degree of obtuseness about sexism. These movements may well have said
exactly the right thing about Vietnam, but they had absolutely no awareness
of women's issues. So maybe that's where I am coming from in my slight
skepticism about movements. And you know, women have been fighting
ever since to bring that awareness of gender into the progressive social
movements of America, but how much have we really achieved? That's a
question to be debated.

Now to Saskia Sassen. 63 Her paper has so much in it that I shall not
be able to address very many points, but her point about capabilities and
valance is a very intriguing and important one. 64 Here, in fact, we see a
fundamental area of difference between me and Amartya Sen. Sen has
always talked about capabilities as though there's nothing in them but good.
And he writes about maximizing freedom, speaking of "the perspective of
freedom" and of development as freedom. 65 In 2003, I had a debate with
him on this: what I said was, "Look, you have to evaluate the
capabilities., 66 First of all, there's no coherent project that consists in
maximizing freedom as such, because some freedoms limit others.
Moreover, every freedom requires limiting the freedoms of those who
would interfere with its exercise. Second, some freedoms are important and
worthy of constitutional protection, and some are quite trivial. That's one
distinction you have to make: the freedom to ride a motorcycle without a
helmet is just not one of those things that's deserving of constitutional
protection, where I believe that the freedom of sexual choice is. And so we
have to evaluate. But then, when we do that evaluation, some freedoms turn
out to be actually bad. The freedom of industry to pollute the environment,
the freedom to hang out signs saying, "No blacks here," those are freedoms
all right, and some people really resent the state stopping them from doing
that. The freedom to harass women in the workplace is a cherished male
prerogative that law is now curtailing, and many men are very upset; they
do feel their freedom has been diminished. But I would say those freedoms
are bad from the get-go.

63 Saskia Sassen, Strategic Gendering as Capability: One Lens into the Complexity
of Powerlessness, 19 COLUM. J. GENDER & L. 179 (2010).

64Id. at 181-85, 199.

65 See my discussion in Capabilities as Fundamental Entitlements, supra note 9,
with references to Sen's writings, prominently including AMARTYA SEN, DEVELOPMENT AS
FREEDOM (2000).

66 Capabilities as Fundamental Entitlements, supra note 9.

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Now what Sen says to that is, "Oh, no, freedom is per se always

good, but it can be used in bad ways." So he says, for example, male

strength is good, but it can be used to beat up women. Well what I want to

say is, no, those are different cases. And the cases that I have just given are

cases where, the bad is already included in the very description of the

freedom. This difference comes out in this debate about whether there

should be a list of central capabilities, and I think that's all a question of

what the purpose is. But I think, you know, whether you have a list or not,

you can't avoid this question of the evaluation of the capabilities.
I learned a tremendous amount from Aili Tripp's paper,67 and I

really admire her project. I am hoping that she will present it someday at the

Human Development and Capability Association, because it is so

illuminating and relevant to our project. I just want to address two points,

and one is the point about conflict that she raises. Tripp says that one

criticism one might make of the capabilities approach is that there is no

account of what you do when capabilities collide. That's a question I get a
lot, so it is important to answer it.

In a paper called The Costs of Tragedy: Some Moral Limits of Cost-

Benefit Analysis, I take that up.68 And what I say is if you really think that

these ten capabilities are all entitlements that people have by virtue of their

dignity, and that they are all essential to a life that is worthy of human

dignity, then when two of them collide there are two separate questions you
have to ask. The first question is what to do in the present case, and that's

what I call "the obvious question." But the second question is: are any of

the things open to you here free from serious wrongdoing, to which, in that

case, the answer ought to be, no-there's a tragic dimension to this. I call

that "the tragic question." If I have to deprive some people of something to

which they are entitled on the basis of their human dignity, well that's very

bad. Now why is it useful to notice that? Isn't that just moaning and

groaning? I think it is very useful for the reasons that Hegel thought tragedy

was useful. It helps you think ahead if you can say, "Well how did we get

into this pickle where we're stuck with this horrible conflict? Let's design

something where people don't actually have that conflict." And the example
I give is that poor families in India often have a conflict between sending

their kids to school and getting enough to eat themselves, because they need

to use their children for labor, and so then they need to keep them out of

67 See generally Tripp, supra note 13.

68 Martha C. Nussbaum, The Costs of Tragedy: Some Moral Limits of Cost-Benefit
Analysis, in COST-BENEFIT ANALYSIS: LEGAL, ECONOMIC, AND PHILOSOPHICAL PERSPECTIVES

169 (Matthew D. Adler & Eric Posner eds., 2000).

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school. So that is a tragic case: the answer to the "tragic question" is no,
there is no alternative open to those people that is free from serious wrong-
doing. Whatever you do, people are being deprived of a fundamental human
entitlement. Well the State of Kerala figured out a clever way to cut through
that dilemma by saying, in the school, we're going to give you a nutritious
midday meal, and that meal is enough to offset the loss labor costs for the
children. And then, the Supreme Court of India, seeing what a successful
idea this was-and it did produce ninety-nine percent adolescent literacy
rate for both boys and girls-ordered every state in India to serve a midday
meal with at least 350 calories and fifteen grams of protein.69 Now that's
judicial activism for you. I like it. And so I think there are many areas in
which we want to have that happen, areas in which the tragedy is
unnecessary where the tragedy was caused by stupidity and bad planning. I
think many instances where people are being deprived of a fundamental
entitlement are like that.

I just heard yesterday from a reporter that now they can synthesize
meat from stem cells. And I think this, if it works, would put an end to so
many tragic choices people have involving their nutrition and the lives of
animals. So any kind of creative forward-looking solution to a tragic
dilemma requires, first of all, recognizing that it is a tragic dilemma, which
I think cost-benefit analysis usually doesn't do, since it focuses exclusively
on the "obvious question." And then we try to design a future in which
people don't have to face that.

As to Tripp's point about collective capabilities70 : I am not at all
opposed to collective solutions. I think it's good to articulate the goal in
individual terms because I really think it is very important that each
individual is an end and not a mere means to the ends of the others. And in
any group, there can be hierarchies and differences of power. When we give
rights to a group qua group, we often only further empower the powerful
ones within the group. We see this happening all the time with systems of
personal law, which are dominated by male clerics, and end up
subordinating women. Of course, some groups are not like that, but any
group could become like that.

So I think, in principle, it's good for constitutional entitlements to
be formulated as individual entitlements, but, first, the entitlements include
affiliational entitlements, which could not possibly be satisfied without

69 See People's Union for Civil Liberties v. Union of India & Ors. (S.C. 2001) Writ
Petition (Civil) No. 196/2001.

70 See generally Tripp, supra note 13. Saskia Sassen raised a related point in the

discussion, and this part of my reply conflates my response to both.

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promoting certain kinds of relationships. Care has been very much on my
mind and how we get care and support relationships. That is a fundamental
theme of Frontiers of Justice.71

Second, a normative focus on the individual does not at all prevent
group remedies from being essential instruments of the production of
capabilities for individuals. In the area of religion we've all understood,
constitutionally, that protecting religious liberty of individuals entails
giving churches certain rights, for example, rights to own property and
rights to select their employees and so on. But this group right is
instrumental to the individual rights it protects. I think affirmative action is
a case of a group right that is instrumental to full individual rights: that is,
the goal ought to be the full empowerment of each and every person, but a
group-based remedy is often the best way to get there. Whether it is the best
way is quite contextual. In 2009 our law school sponsored, with Jawaharlal
Nehru University in New Delhi, a joint conference on affirmative action in
higher education. And it was very interesting to see that discussion because,
of course, the U.S. people were all quite quota-phobic and the Indian people
were much more committed to quotas. But interesting questions came up.
For example, in India it's so obvious that the quotas operate to benefit the
privileged within each group, the so-call "creamy layer." So the Americans
said, "Well why don't you just have an individualized admission system
and factor in many different things such as economic disadvantage and so
on?" One of the answers was, "With so much corruption, we could never
manage such a system." So I think all of these factors need to be thought
about. And I guess right now, right, my feeling is that given the totality of
factors, for India the quota-based system is probably the best, although I
think the quota should still be done in a way that takes in economic
disadvantage much more than current forms do. And for the United States,
maybe for higher education anyway, something more individualized could
and does work quite well. The point is that in order to think well about this
case we need, I think, first to conceive the goal as the full empowerment of
each person, and then to ask how various group-based solutions do or do
not promote that.

When we think about globalization, as Sassen does,72 thinking
about group solutions and systemic conditions becomes even more
important. In Frontiers of Justice, though I do not spend a lot of time on

this issue, I observe that there are certain economic roles that are now being

71 See generally FRONTIERS OF JUSTICE, supra note 6.

72 See Sassen, supra note 62.

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played mostly by multinational corporations, which suddenly have great
importance in determining whether people get their capabilities or not.73

How should we think about that? Well one thing I think we have to
do is start with the goal that all the citizens of the world, meaning each and
every person, should have the capabilities, and work backward from that.
Then the question is who has the duties correlative with those rights. Some
of them have to be assigned to the World Bank and the IMF, to corporations
and so on. And figuring out how to do that is very, very complicated. I
don't think that's really what I am professionally equipped to do, other than
to throw out a few suggestions. But that is what I would hope to learn from
Sassen's project. My dear colleague Iris Young, 74 who of course died
unfortunately and prematurely last year, would always say to me, "You
have to think more about structure." And I would say, "But Iris, you're the
one who will do that." And she said, "No, no, no, you have to do it." Now,
tragically, that reply is no longer available to me, so I will have to take
Iris's suggestion and do the job myself. But I also look forward to learning
a great deal from people who have expertise that I do not have.

IV. HISTORY, IDENTITY, SEXUALITY

Now I turn to the wonderful panel on history, identity, and
sexuality. First, to Alice Kessler-Harris. 75 In talking about the descriptive
and the normative, I have already given some reasons why I think history is
so crucially important for any normative project: we need to be aware of the
ways in which contexts of many sorts shape people strivings, in order to get
the right problems onto the table, and in order to make sure that we do not
frame our norms in an obtuse and biased manner.

But now I want to talk about justification, because I believe that
history, in a way, plays a role there too.7 6 Basically, I follow the idea of
political justification that John Rawls articulated first in Theory of Justice77:
what we ought to be doing is looking at our most deeply rooted ethical
judgments, but also looking at the major theoretical options out there before

73 id.

74 Iris Marion Young, 1949-2006: A Tribute, http://cptgrad.uchicago.edu/
irisyoung/ (last visited Feb. 1, 2010).

75 See generally Kessler-Harris, supra note 45.
76 

See WOMEN AND HUMAN DEVELOPMENT, supra note 5, ch. 2.

77 JOHN RAWLS, A THEORY OF JUSTICE (1970).

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us, and we go back and forth between those. And we keep doing that as new
theories come along and as new judgments come along. So it's an open-
ended never-completed process. Reflective equilibrium is the name of the
endpoint that we would have reached if the process were ever complete, but
it's important that it is envisaged as not being likely to be complete. And so
as time goes on, we might find that different judgments emerge. And then,
of course, new theoretical alternatives emerge as well.

I think what I am doing in Frontiers of Justice is to say, well, now
we have a new set of problems before us, and we must confront the social
contract tradition with those.78 And all of a sudden, a theory that looked
pretty good before looks less good and we have to consider the merits of a
different theory, and so on. Now sometimes, I think we do want to say that
we were wrong all along and that what we're doing is discovering
something that was true all along. And I guess I do think that with
inequality of women this is what I want to say. And I think that the bad
treatment of people with disabilities and of non-human animals was bad for
a very long time, and we should not pretend that this problem has only
recently emerged due to historical changes. But there are other things where
the world changes in ways that really do give us reason to say something
different. It might be that when we thought about education 500 years ago,
we wouldn't think of education as something that required twelve or more
years for everyone. Secondary education could be seen as inessential to a
life worthy of human dignity, because there were many ways that people
could live dignified lives that didn't involve that kind of education. Today,
given the employment options people have, given the way politics works,
given the way the global economy works, and so forth, if you're not
numerate and literate and you don't have some technical education, you're
cut off from opportunities in a way that you weren't before. So I think that's
a way in which history could actually change the norm we ought to strive
for-not, perhaps, at the most abstract level, but at the level of the more
concrete specification, the level that you would try to agree about if you
want to put a given capability into your constitution.

Janet Jakobsen's paper 79 is very impressive, and I agree with more
or less everything she says. I do indeed want to be read in a "queer"
direction, as I have said: as continually questioning traditional categories.
And I find her discussion of religion extremely illuminating. I have long
thought and said that religion need not be a support for patriarchy.

78 See generally FRONTIERS OF JUSTICE, supra note 6, at 1-4.

79 See generally Jakobsen, supra note 15.

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Religions are as diverse as the cultures of which they are a part, and my
own religious tradition, Reform Judaism, has a long history of feminist and
progressive action and theorizing, including both internal religious support
for same-sex marriage and political action on that issue.80 I agree with
Jakobsen that contemporary political opposition to same-sex marriage that
claims religious support is best understood as being inspired, instead, by
features of the wider culture, including norms of masculinity that construct
and mobilize disgust in a particular way. 81 I also admire the way in which
she connects a critique of such norms--defining the "real man" in terms of
total control and a lack of need for relationship-with more general social
and political problems of care, dependency, and relationality. As she says, I
have argued, in a similar spirit, that the image of the individual that
animates popular thinking about the social contract is closely related to such
norms of the real man, since individuals making the contract are
hypothetically constructed as "free, equal, and independent," none deeply
needing the love and care of others. 82

Mary Anne Case's paper is a major contribution.8 3 Because of its
length and detail, because it draws upon so much of her prior important
work on sexual orientation and constitutional law, I cannot hope to do full
justice to its valuable arguments here. I think it is wonderful that a very
different perspective on these matters should be articulated in this
Symposium, and I believe that the existence of different routes to a shared
set of conclusions enriches the political and academic debate. I hope that an
ongoing conversation between Case and me will clarify the issues further
and will contribute to the intellectual vitality of an area of academic
discourse that could all too quickly degenerate into pious self-
congratulation. So I am grateful to Case for her searching critique. Here I
shall be able to address, all too briefly, only three issues: the role of
"political liberalism" in my argument; my use of an analogy between sex
and religion, which Case disputes; and the role I see for moral sentiments in
ensuring the stability of good political principles.

80 On the Reform tradition, see Martha C. Nussbaum, Judaism and the Love of
Reason, in PHILOSOPHY, FEMINISM, FAITH (Marya Bower & Ruth Groenhout eds., 2003).

81 Jakobsen, supra note 15, at 142.

82 See FRONTIERS OF JUSTICE, supra note 6, chs. 1-2.

83 Mary Anne Case, A Lot To Ask: Review Essay of Martha Nussbaum 's From
Disgust to Humanity: Sexual Orientation and Constitutional Law, 19 COLUM. J. GENDER &
L. 89 (2010).

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First, let me say that it was never part of my claim that all

opposition to same-sex relations is grounded in disgust. Nor did I claim to

offer a fully comprehensive overview of sexual orientation and the

constitution. I was urged by my series editor Geof Stone to come up with a

distinctive perspective and a particular grouping of the salient materials,

and I agree with Case that a more complete treatment would have to address

Boy Scouts of America v. Dale84 and other First Amendment cases, as Case

has so ably done. Schools are another issue that would need to be addressed

in a more comprehensive treatment. My claim was, instead, that quite a lot

of the opposition to same-sex conduct and the people who engage in it is

grounded in disgust, and quite a lot more than initially appears to be the

case. (In the published version of the book I add citations to some recent

experimental research that confirms this linkage.) People often put forward

an argument that appears to be about some quite different thing, but, when

we examine it, we find that its credentials are so flimsy, and it is applied in

such capricious and inconsistent ways, that it's a good bet that something

else lies beneath. This something else sometimes surfaces, as in the

campaign for Amendment 2, but efforts at concealment are usually made, as

I point out. So my project involves both tracking explicit appeals to disgust

and also reconstructing arguments to show that they are only anything like

valid if one should supply tacit premises involving ideas of disgust and
stigma.

But to go further we must turn to my position on "political

liberalism." As I have said in Section III, my overall normative political

view, articulated in books such as Woman and Human Development,

Frontiers of Justice, and Hiding From Humanity, is a form of what is

known as "political liberalism," namely, the view that political principles in

a pluralistic society ought to be based on no single comprehensive religious
or secular doctrine, but, instead, on materials that may over time become

the object of an "overlapping consensus" among holders of the major

comprehensive doctrines. For example, an idea of human equality, or

human dignity, or equal respect for persons, could be a part of such a

political consensus, but the idea of the immortal soul could not. So believers

in the soul will agree to respect the political principle of equal human

dignity, and will then further interpret that idea in terms of their own

comprehensive religious doctrine. Atheists will interpret it differently, in

terms of their own doctrine, whether Kantian or Aristotelian or whatever.

This general view of how political principles ought to be framed is a kind of

generalization, one might say, of an anti-Establishment principle: the idea is

4 530 U.S. 640 (2000).

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that it is disrespectful and subordinating to ask people to live in accordance
with a political conception that states that they are an out-group and another
preferred group the in-group. (I explore this idea with regard to the Religion
Clauses of the First Amendment in Liberty of Conscience.8 5 ) I don't claim
that this norm has ever completely prevailed in U.S. Constitutional law, but
I believe that it often does prevail and that it ought to prevail.

Let's now turn to sexual orientation. What the norm means is that
any good political principles in this area must be consistent with a
fundamental norm of equal respect for persons. In Liberty of Conscience, I
argue that this norm of equal respect entails extending wide latitude to
persons to lead their lives in their own way, in accordance with their own
conscience, when they are not violating the rights of others--even when
one does not at all like what such people say and also do.86 In From Disgust
to Humanity, I extend that principle to sex, an area of fundamental self-
definition for many if not most individuals (as is religion).87 Moreover, as is
the case with religion, any good principles in this area must be principles
that can be argued for and accepted without using the materials of one's
own religious doctrine, since to argue in a sectarian way would suggest that
the listener had to convert in order to accept the argument, an unacceptable
demand in a pluralistic society. Of course someone may really believe that
the reason to support a social welfare program is that God has commanded
us to do so, but such a person will have to find some other way of arguing
to her fellow citizens in a pluralistic society, if the argument is to show
sufficient respect for them as free and equal persons.

What does all this mean for the issue of sexual orientation? First
that any overt appeal to ideas of stigma and taint must be rejected as
inappropriate, since our society is built upon an idea of equal respect for
persons. Just as ideas of racial stigma and taint were (normatively)
inadmissible in debates over miscegenation, so too they are inadmissible in
debates over sodomy laws, or same-sex marriage. Second, arguments
cannot rest on features of one's own particular comprehensive doctrine that
are metaphysical or in other ways sectarian and could not be the object of
an overlapping consensus among reasonable citizens holding different
religious and secular views of human life.

85 See generally LIBERTY OF CONSCIENCE, supra note 31, ch. 4.

86 id.

87 See generally FROM DISGUST TO HUMANITY, supra note 32.

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A brief parenthesis at this point. Case wonders why I spend no time
in the current book on the arguments of Robert George and John Finnis. 88

There are three reasons. One is that I discussed them at great length (partly
in co-authorship with Sir Kenneth Dover) in an article in the Virginia Law
Review in 1994,89 and I have no new observations to add. Second, their
arguments are transparently unsuitable for a pluralistic society, if one sees
the normative project in anything like my way. They use sectarian Catholic
notions throughout, such as "two-in-one union," and, although they assert
that these ideas are grounded in natural law, they do nothing much to make
them persuasive to anyone who does not already hold their own particular
view of Roman Catholic natural law doctrine. Even a modem natural law
thinker such as Catholic philosopher Paul Weithman has found them
puzzling and deeply unsatisfactory. 90 Weithman finds that he can cast them
in the form of a valid argument only by supplying a premise that is clearly
false. Moreover, Weithman's is a generous reading of Finnis, for he begins
by conceding a premise that Dover and I hold to be clearly false, and that
most Americans would not accept either, namely that it is always morally
wrong to use one's own body as a source of pleasure. 91 The third reason
why I did not pay much attention to their arguments is that they are so
sectarian that they have virtually no influence inthe American public
debate. Finnis and George condemn in similar terms all forms of non-
procreative sexuality, from masturbation to contracepted sex within
marriage, and most Americans simply have no problem with contraception.
In From Disgust to Humanity, I mention the odd event during the bench
trial of Romer when George offered testimony that a landlord could
reasonably refuse to rent an apartment to a man of whom he believed that
that man would be likely to masturbate in the apartment.92 I think it is safe
to say that for most Americans (landlords, perhaps, in particular), such
utterances are comic and do not conduce to giving the utterers serious

88 Case, supra note 83, at 118.

89 See 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 Platonic Love], app. iv., at 1641-51. Kenneth Dover was my co-author of
Appendix Four, which is entitled Dover and Nussbaum Respond to Finnis.

90 Paul Weithman, Natural Law, Morality, and Sexual Complementarity, in SEX,

PREFERENCE, AND FAMILY 227-46 (David M. Estlund & Martha C. Nussbaum eds., 1997).

91 Platonic Love, supra note 89, app. iv. Finnis does not confine the point to sexual

pleasure: thus Dover and I use such counterexamples as going for a swim and stroking a cat.

92 See FROM DISGUST TO HUMANITY, supra note 32, ch. 4.

278 [Vol. 19:1



2010] Liberalism, Development & Gender 279

political influence. I think a lot of academic ink is spilled over George and
Finnis only because they do make arguments, which many people in the
area do not.

Back, then, to our subject. What I try to do in the section of Chapter
Five of my book on arguments against same-sex marriage is to ask which
arguments, among those currently being used, are genuinely public
arguments, arguments that can pass the no-conversion test: i.e. any citizen,
whatever her religion or non-religion, could in principle be persuaded by
the argument, if it's a good one, without converting to the proponent's
religion. Many arguments do not pass this test. Of the arguments that don't
pass, I do not conclude that they are all motivated by disgust. I conclude,
instead, that they give good reasons for a member of that religion to avoid
same-sex marriage, but not reasons to make it illegal for all in a pluralistic
society. Other arguments (for example, the argument that children do better
in homes with one mother and one father) have the form of a public
argument and are not sectarian, but they do not withstand rational scrutiny
on the facts-where child welfare is defined in a religiously neutral manner.
Of such arguments, I think it's worth asking why people continue to believe
and utter them, even though the facts stare them in the face. Perhaps some
other set of motives might be at work. The third sort of argument alludes
relatively directly to an idea of stigma and taint: the argument that the
legalization of same-sex marriage "degrades" heterosexual marriage. I try to
find some other meaning for "degrades" that can make this into a
comprehensible argument, but I just don't succeed: I think it has to mean
"taints," "contaminates." Here, then, disgust shows its face pretty openly.

So that is the way I argue in Chapter Five of my book.93 The next
step, in pursuing a dialogue between Case and me, would be to examine
each of the arguments offered against same-sex marriage to see whether I
am right or wrong about them. Nothing rules out that there might be some
new excellent argument cast in terms acceptable to political liberalism that
could withstand critique: but then, let's see that argument.

Case takes issue with the analogy I suggest between law and
religion, saying that in the case of religion people were worried only about
belief, not conduct, whereas in the case of sexual orientation they are
worried about conduct.94 Both of us, I am sure, can agree that conduct that
is in Mill's sense "other-regarding," involving the rights of others, is rightly
scrutinized by law, so what we're talking about is "self-regarding" conduct,

93 See FROM DISGUST TO HUMANITY, supra note 32, ch. 5.

94 Case, supra note 83, at 111.



Columbia Journal of Gender and Law

conduct implicating only consenting agents. My argument was that with
sexual choices, as with religious choices, we're dealing with an area that
many people view as deeply definitive of selfhood, and expressive of
identity. The argument in both cases is that respect for persons dictates that
we ought to protect a wide sphere in which people make their own choices,
whether we like the way they use this freedom or not. Respect is for
persons, not acts, but respect for persons entails protection of a sphere of
liberty of action. So my argument is in fact not about belief at all, it is about
conduct in both cases: not that all people ought to respect the conduct, but
that, respecting the people as their equals, they should give them (indeed
protect for them) space to pursue the conduct, so long as it does not impinge
on the legitimate rights of others. Case thinks religious conduct never
worried people, because they all behaved similarly, they only believed
differently. 9' I am afraid history does not support this claim. From the very
beginning of colonial disputes, conduct was also at issue: Roger Williams's
religiously inspired refusal to take a loyalty oath; his strange association
with the Indians and his zealous defense (again, grounded in conscience) of
their property rights; the refusal of Jews to perform required public
functions on the Sabbath; the refusal of Quakers and Mennonites to perform
mandatory military service. I detail all of these cases, and many more, in
Liberty of Conscience, arguing (by looking at the early drafts of the
Religion Clauses) that it was no accident that the word "exercise" was used
in the Constitutional text.96

Later on, the new immigrant groups who caused upheaval were
those, above all, whose conduct seemed disturbing to the majority (as I
describe in my chapter "Fearing Strangers" 97): Mormons practicing
polygamy (an example Case acknowledges); 98 Jehovah's Witnesses
refusing to salute the flag and say the Pledge of Allegiance; Roman
Catholics' insistence on separate schools. The limits of modem free
exercise law are always found in these uncomfortable places, and my book
goes into this in considerable detail. So, I think the analogy holds, and what
it means is that religion and sex are special in a sense, special in that they
involve a fundamental expression of the self (in at least the view of many),
part of which frequently consists in acts that may make others feel

95 Id. at 113, 116-20.

96 See LIBERTY OF CONSCIENCE, supra note 31, ch. 4.

97Id., ch. 5.

98 Case, supra note 83, at 113.

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uncomfortable. Respect for persons, not acts, dictates protection of space
for acts that make others uncomfortable, so long as they do not interfere
with established rights. Thus the difficult cases for my view are cases such
as public nudity, public masturbation, etc., where there is what I call a
"direct offense," rather than a purely "constructive" injury (i.e. one
occasioned by merely imagining what is going on), and in which it is
unclear whether we ought to say that the rights of nonconsenting others are
violated. 99

Case's largest challenge to me concerns the role of the moral
sentiments in a public culture. She thinks I demand too much: a sentiment
akin to love, rather than a grudging "live and let live." 1OO It is of course
clear that I do not make a complete argument for my position on the moral
sentiments in From Disgust to Humanity. That argument unfolds in the final
chapter of Frontiers of Justice and in several recent articles that are
beachheads for a book in progress on precisely this topic.'l 1 Let me
summarize my current position. Like John Rawls, I am concerned with the
stability of good political institutions, and, like Rawls, I believe that good
institutions will not be stable if they are supported by attitudes of merely
grudging acceptance. So a just society needs to think about how to engender
more supportive attitudes. This is all the more true of the society I envisage,
because it makes greater demands on people than Rawls's society, in some
ways, and eschews the classics contractarian idea of mutual advantage as a
basis for political society.10 2 Rawls believes that the relevant type of
sentiment will be highly abstract and principle-based: a love of just
institutions and their justice. Similar views have been expressed by Jiiergen

99 See HIDING FROM HUMANITY, supra note 19, ch. 3.

100 Case, supra note 83, at at 133-34..

'01 For a discussion, see generally FRONTIERS OF JUSTICE, supra note 6; Martha C.
Nussbaum, Toward a Globally Sensitive Patriotism, 137 DEDALUS 78, 78-93 (2008);
Martha C. Nussbaum, Radical Evil in the Lockean State: The Neglect of the Political
Emotions, 3 J. MORAL PHIL. 159 (2006). A longer version can also be found in Martha C.
Nussbaum, Radical Evil in Liberal Democracies: The Neglect of the Political Emotions, in
DEMOCRACY AND THE NEW RELIGIOUS PLURALISM 171 (Thomas Banchoff ed., 2007), and in a
forthcoming volume of essays on the emotions edited by John Deigh and in memory of
Robert Solomon, to be published by Oxford University Press. A fuller treatment of this issue
can also be found in my forthcoming book, MARTHA C. NUSSBAUM, CAPABILITIES AND
COMPASSION (forthcoming 2011).

102 These concepts are explained in FRONTIERS OF JUSTICE, supra note 6.

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Habermas, describing what he calls "constitutional patriotism."' 0 3 I argue,
against those two very rationalistic philosophers, that such cold sentiments
are insufficient to sustain the bonds of political society: something much
more genuinely emotional, and quasi-erotic, something like a real
passionate love of the nation and its people, must be involved.

Now of course patriotic love can lead us astray in many ways, so
the next step is to try to articulate a view of how such a love might be
constructed, and instilled, without incurring the dangers of fanaticism,
demagoguery, and group hatred that are often part of patriotic projects. I
have pursued that project (up until now) primarily through analysis of
examples drawn from the history of both Indian and U.S. traditions,
examining speeches and actions of Jawaharlal Nehru and Mahatma Gandhi,
as well as the erotic text and music of India's national anthem; in the U.S.
case I examine speeches of Lincoln and Martin Luther King, Jr. Although
Case invokes King on her side, 104 1 think one can show quite convincingly
that he skillfully engenders sentiments of hope and loving brotherhood in
his audience, in a way that is utterly different from the Rawlsian and
Habermasian idea.10 5

Here, regrettably, I must leave my consideration of Case's paper. I
hope this brief confrontation suffices to show how important her questions
are.

Although Elizabeth Emens did not present a paper at the
Symposium, she is one of the legal thinkers on gender and identity whose
work I especially admire, and she did address a question to me at the
conference, so I now turn to that. Emens inquires about the social solution
to the same-sex marriage problem that I proposed in the marriage chapter of
the manuscript of From Disgust to Humanity106 (very much shortened in the
print version), which is the disestablishment solution, disestablishing
marriage and disaggregating the bundle of benefits it currently bundles
together. This solution involves getting the state out of the expressive
domain and replacing state marriage with civil unions (preferably not a
single bundle, but a rethought and disaggregated group of benefits)-at
which point, then, religions and private organizations and associations can

103 See my discussion of both in Toward a Globally Sensitive Patriotism, supra

note 101.

104 Case, supra note 83, at 98.

105 See Toward a Globally Sensitive Patriotism, supra note 101, for my analysis of

King's "1 Have a Dream" speech.

106 From DISGUST TO HUMANITY, supra note 32, ch. 5.

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do the marriage thing in their own ways. She asks why I take that approach.
Her worry is that by going in this direction we might lose an impetus for
change within the institution of marriage, which might become more
gender-equal by pressure from the example of same-sex couples. If the state
continues to have a role in marriage, she argues, this pressure might really
have the potential to change and affect other relationships. She recalls a
question she once posed to Martha Fineman, whose views are similar to
mine: "Do you worry at all about closing the swimming pool just as other
folks are about to jump in?"

Now of course in one way we have to worry about this issue. It
would plainly be unconstitutional for a state to stop offering marriage just
because it wanted to avoid including same-sex couples. That case would be
similar to the cases where states in the South tried to close public swimming
pools, or in one case to stop offering public education, to avoid the impact
of court-ordered desegregation. 0 7 So states could not play that game. But
suppose they really do undertake the serious rethinking of their packages of
benefits that I (with Michael Warner) recommend: that would, I think, be
constitutional, and it might well involve, in the end, getting the state out of
the expressive domain. At that point, we would have to face Liz Emens's
question, which is not just a question about spite-induced state policies.

The question Emens poses is important. In From Disgust to
Humanity, I actually leave out a lot of the section of the draft that Emens
and others read, just gesturing toward it, because, in the end, I was
convinced by my editors that it was irrelevant-the book is about
constitutional law, and these are policy issues. But I do hold those views.
There are really two separate claims that I would make. One is that the state
should go over from marriage to civil unions: that is, the state should get
out of the expressive domain and stick to the material domain. The second
claim is that even in the material domain we should radically rethink the
privileges that we now bundle together, going from a bundle to a
disaggregated situation. We need to consider all the benefits currently
associated with the institution of marriage, asking whether they really
belong together, as Michael Warner and Claudia Card have insisted.108 For
example, perhaps a brother and sister who live in the same house would get
the certain tax privileges associated with head of household.

107 1 am grateful to Pam Karlan for discussion on that issue.

108 See, e.g., MICHAEL WARNER, THE TROUBLE WITH NORMAL (1999); CLAUDIA

CARD, LESBIAN CHOICES (1995).

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In the end, what I think is particularly important is the rethinking
and the disaggregation. We are saddled with this history, which is the
legacy of patriarchal institutions, and it has bundled all kinds of

heterogeneous things together for reasons having to do with that bad

history. And we ought to at least ask ourselves is this wise, is this really
how we want to assign privileges-to say married or not married, all or
nothing, you get this package or nothing. But I think it is highly unlikely
that our society is really going to engage in this rethinking, maybe around
the margins and thinking about immigration and one or two other things.
But in the end, I think it probably won't happen. And so that's where I think

the fallback position would be the civil union bundle-although, as I said, it
would have to be done in a way that made it clear that the motive was not
spite directed against same-sex couples. Now we have to face Emens's
question: have we lost something that could prove valuable in pushing our
nation toward sex equality?

Now getting the state out of the expressive domain, first of all, does
not mean that the expressive domain goes away. It exists. People would still
get married. And they would get married not just in churches and
synagogues and mosques: most of the weddings I've gone to recently are
totally secular. They are performed by Justices of the Peace or some other
duly constituted secular person, and the vows are written by the people. So
since that's happening now anyway, I think it would happen even more and
perhaps in a more organized way if the state was no longer in the marriage
business. There would be groups of people who would get together to create
various forms of marriage ritual. Some states already recognize this by
giving anyone who wants to perform a marriage the right to perform one
marriage a year. Massachusetts is an example of that.

I think, in other words, that all of the resonance associated with
marriage and its potential to change norms would not go away if the state

only performed civil unions-because I don't see Americans becoming
suddenly indifferent to ritual and symbolism. Recently, when I spoke about
the same topic at Princeton, a woman, a very fine philosopher from Iceland,
said, "Well you know, no one even thinks about marriage as part of the
life's story in Iceland. It's just not a big deal. And so they don't understand
why Americans attach so much importance to it." It happens that in Iceland
they have found a different route to a more gender-equal structure, so
Emens's question does not come up for them. But in America, where people
are so interested in ceremony, ritual, and celebration, I think the emotional
power of those symbols will endure, even if the state is no longer involved.
And what might be good about getting the state out of it is we get rid of this

[Vol. 19:1



Liberalism, Development & Gender

profound ambiguity that now exists about whether or not the state is
celebrating or sanctifying the people it chooses to marry.

Now I think what's wrong with that idea of the state's function, is,
first of all, that thinking of marriage as conferring sanctity, a quasi-religious
idea, is bound to lead to what you get, namely the worry that people are
being forced to approve of same-sex couples and that their religious
conscience is being violated. So all that argument is going to go away if
marriage no longer has the expressive side. But I also think, as it stands, the
current position of the state is totally incoherent and ridiculous because,
actually, is the state blessing or sanctifying Britney Spears by allowing her
to get married to somebody on a whim and stay married for less than
seventy-two hours? Well no one thinks that really. Is the state blessing
people when it allows my friend in Massachusetts to marry two of his
friends? Well, it seems implausible. There's a very interesting debate on
this point between Charles Fried and Josh Cohen on Bloggingheads TV.109

Fried kept pressing his point that we can't allow same-sex marriage because
we can't make people bless or approve of something their conscience tells
them not to do. And Josh said, "Marriage doesn't mean anything. I just
married two people, and it has nothing to do with blessing, because all I
have to do is fill out a form."'' 0 So I think the status quo is incoherent as
practice, but it does, then, give rise to this question that Charles asked and
that everyone is asking; the very involvement of the state in something that
sort of looks like sanctification just seems to put pressure on people in ways
that deeply upset them. But I don't think the expressive domain requires the
state. I think it requires people to learn from each other and to look at each
other and to just learn different ways of doing things.

But I also think that if gender roles are really going to be changed,
it is going to be less from observing same-sex couples who do things
differently than from having employers put in place different workplace
practices that do not mandate twenty-hour workdays for young lawyers. It is
going to come from giving incentives through leave policies; for instance,
you only get parental leave if you share in certain ways. And so there are
lots of structural features related to people's incentives that are going to be
crucial for both straight and same-sex couples if really this change is going
to be meaningful.

109 Conversation between Joshua Cohen, Martha Sutton Weeks Professor of Ethics

in Society, Stanford University & Charles Fried, Beneficial Professor of Law, Harvard Law
School, A Stanford Liberal's Chat with a Harvard Conservative (Feb. 22, 2009),
http://bloggingheads.tv/diavlogs/9048.

11° Id.

2010]