ArticlesVolume 19, Number 1 (2010)

Theorizing and Litigating the Rights of Sexual Minorities

Abstract

It is an extraordinary honor to participate in a symposium that is a tribute to the works of Martha Nussbaum. She is not only one of the country’s absolute best moral philosophers, but there is also simply nobody better at doing the deep thinking about what it means to respect the dignity of human beings.’ One of the best measures of a society is how it treats its vulnerable groups. A central idea Professor Nussbaum poses in many of her writings is that all humans “are of equal dignity and worth, no matter where they are situated in society.” The strategic challenge in lesbian, gay, bisexual, and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. Martha Nussbaum has done tremendous theoretical work on the role of negative emotions, such as disgust and shame, in the criminalization of particular forms of sexual conduct. This Article will focus on the roles of a positive emotion- love-and a procedural method of proof-science-in the shaping of laws defining the rights of sexual minorities. While Professor Nussbaum does not explicitly address the functions of science in this area, she champions reason, and an examination of the types of empirical information she presents demonstrates a place for the scientific method in the search for social justice. A discussion of the role of love in LGBT rights litigation emanates, generally speaking, from a larger discussion of liberty and autonomy, while a discussion of the role of science stems, speaking even more generally, from a larger discussion of equality. To gain greater rights for sexual minorities, advocates must paint an inclusive picture of love and relationships and must insure that science is an ally rather than an enemy in the battle.