In the Case of Martha Nussbaum

Almost four years ago I wrote in these pages about a pro-choice legal brief signed by 281 American historians and submitted by New York University law professor Sylvia Law to the Supreme Court in the 1989 Webster case (“Academic Integrity Betrayed,” August/September 1990). The brief’s two central claims-that abortion was not illegal at common law and that only recently has the moral value of the unborn become a motivating concern of abortion opponents-were false. Key signatories knew, or had ample reason to know, that they were false. The brief relied at critical points on James Mohr’s Abortion in America: The Origins and Evolution of National Policy, 1800-1900. But Mohr’s book actually contradicted the claims it was mustered to support. Despite that, Mohr himself signed the brief. When I challenged him on it, Mohr said that he stood by his book wherever its conclusions differed from the brief’s. He nevertheless defended his endorsement of the brief’s arguments. He signed the brief, he said, as a “citizen” concerned to protect the legal right to abortion, not as a “scholar” whose goal was to present an accurate account of the historical facts.

Professor Law also acknowledged the brief’s “serious deficiencies” as truth telling. One “deficiency” was the drafters’ conscious decision not to tell the Court that most nineteenth-century feminists supported laws restricting access to abortion. It appears, however, that Professor Law has not repented. She put together a substantially similar brief and filed it in Casey v. Planned Parenthood, the 1992 decision reaffirming Roe v. Wade. One prominent Webster signatory did not sign the Casey brief: James Mohr.

Professor Law conceded in a published defense of “advocacy history” that she thinks it wiser to use historians in a written brief rather than in “live testimony, which is subject to cross-examination.” No wonder. Had James Mohr, for example, testified under oath to what he subscribed to in the brief, the question of perjury would be raised. At a minimum, cross-examination of someone such as Mohr would neutralize his value as a witness by the simple expedient of asking him to read aloud from his own publications. (Needless to say, these were not Professor Law’s published reasons for her preference for briefs.)

The Webster and Casey briefs were not submitted under oath. When I reported on the misrepresentations made to the Court in the former brief, I did not imagine that even the most fervent “advocacy scholar” would cross the line and commit simple perjury. If he or she would not be dissuaded by ethical considerations, surely pragmatic self-interest would preclude such a course of action.

Second thoughts are forced upon me by the October 1993 trial of Colorado’s Amendment 2. Adopted by popular vote in November 1992, the amendment would have prohibited laws making gay, lesbian, or bisexual conduct or orientation a ground for “minority status, quota preferences, protected status, or claim of discrimination.” The amendment was challenged on the ground that it violates the federal constitution. Central to the litigation is the question whether moral opposition to homosexual conduct is necessarily based on “mere prejudice” or revealed religious teaching or some other constitutionally impermissible ground, or whether such opposition can instead be grounded in principles for which plausible philosophical reasons can be adduced (the “rational basis” test).

Homosexual activists protested the amendment as a license for “gay bashing.” A New York Times editorial even said that it turned gays into “nonpersons.” Hardly. The point of Amendment 2 is that precisely as such gays and lesbians enjoy no special status. Its import was to overthrow ordinances enacted by liberal enclaves such as Denver and Aspen which had, for example, made it an offense for landlords to act on their conscientious moral and religious beliefs if these beliefs prevented them from renting to couples or groups whose manifest intention was to engage in homosexual practices.

A Denver trial court enjoined enforcement of Amendment 2 before its effective date, on the ground that it violated the United States Constitution. Last summer the Colorado Supreme Court upheld the injunction in what the Times hailed as a “creative” opinion. One has come to understand, however, that any judicial opinion, especially one concerning gay rights, that strikes the Times as “creative” is probably contrived and unconvincing. In this case, it is also incoherent. The full-scale lawsuit over constitutionality was tried in October 1993 before Judge Jeffrey Bayless. He concluded, in an opinion issued December 14, 1993, that Amendment 2 was unconstitutional. He made the preliminary injunction permanent. The case is now on appeal to the Supreme Court of Colorado. An appeal from there to the United States Supreme Court is likely.

Judge Bayless rested his decision upon what he described, following the Colorado Supreme Court injunction, as a Fourteenth Amendment right not to be “fenced out” of the political process. Because certain laws that gays might “desire” were ruled out by Amendment 2, Bayless asserted, they were disenfranchised. A reviewing court-say, the United States Supreme Court-may very well determine that “creativity” has here crossed the line into fantasy. In that event, the challenge to Amendment 2 will turn upon the “rational basis” test.

This familiar constitutional standard has served the gay rights cause well. District of Columbia Circuit Judge Abner Mikva overturned the Naval Academy’s dismissal of a gay midshipman on its authority. Judge Terry Hatter relied on it last year when he restored sailor Keith Meinhold to active Navy duty. In each case, the decisive move was the judge’s assertion (not conclusion, for it followed no argument at all) that opposition to the gay claimant was mere prejudice without a rational basis. In Hatter’s words, the opposition was “baseless” and the product of “cultural myths and false stereotypes.” Judge Bayless distinguished a “rational” basis from “prejudice” and from reasons that are religious in nature.

The question posed by the rational basis test is this: Is there a plausible secular philosophical argument for Amendment 2? The parties to the lawsuit produced testimony and sworn statements from some of the most distinguished academics of the English-speaking world on precisely that point. Testifying for the existence of a “rational basis” were Harvard Professor of Government Harvey Mansfield and Princeton legal philosopher and U.S. Civil Rights Commissioner Robert P. George. Oxford moral and legal philosopher John Finnis, visiting this year at Boston College, submitted the fullest statement-a lengthy, sworn affidavit-in support. On the other side, Stephen Macedo of Harvard offered testimony against the Amendment, as did Martha Nussbaum, Brown University Professor of Philosophy, Classics, and Comparative Literature, and recently Visiting Professor at Chicago Law School. Nussbaum is also a long-time consultant to the United Nations on matters of moral philosophy and public policy, and was chosen to deliver the highly prestigious Gifford Lectures.

This is the story of Martha Nussbaum’s part in the Colorado trial. The reader will want to keep in mind the distinction between advocacy and scholarship, assuming there is still such a distinction in the contemporary academy. Equally important for this story are distinctions between misstatement, misrepresentation, and deliberate falsehood.

The testimony and sworn statements at the trial focused at length on the judgments of classical authors, particularly Plato, Socrates, and Aristotle, on sodomy. Both sides recognized that if these writers-committed as they were to reasoned analysis of moral questions, and untouched by the monotheistic faiths that shape our religious commitments-argued against and condemned sodomy, then a rational basis very likely exists. In his affidavit, Finnis contended that, despite an upper-class ideology of same-sex (and specifically man-boy) “romantic relationships,” the public morality of Athens in the fourth century b.c. treated sexual conduct between males as involving at least one of the parties in something shameful, unnatural, and wrong. Finnis argued that Socrates, Plato, and Aristotle regarded homosexual conduct as shameful and immoral. He set forth what he considered to be a central insight of these philosophers, as of other thinkers unaffected by Christianity (notably the Roman Stoic Musonius Rufus and Plutarch), that homosexual and other nonmarital sex acts are incapable of participating in, actualizing, or truly expressing the intimacy and good of friendship.

In her first filing, Nussbaum declared that “in all of these [pre-Christian Mediterranean] traditions and civilizations, same-sex romantic relationships, attachments, and sexual conduct were highly regarded. . . . Such relationships were never considered shameful. . . . Thus, prior to the Christian tradition, there is no evidence that natural law theories regarded same-sex erotic attachments as immoral, ‘unnatural,’ or improper.”

Nussbaum then testified in court and repeated her claim that, in “Greek culture of the fifth and fourth centuries b.c., and on, really, through to the first century a.d. where Christianity starts to have a big impact, homosexual acts between consenting males, and in rarer cases between consenting females, are attested as received with great approval.” This amounts to a simple disagreement with Finnis. By itself, this sustains Amendment 2. Its defenders do not have to show that Finnis (for example) is right and that Nussbaum is wrong. Amendment 2 needs merely a rational basis, not the unequivocal verdict of reason. Its opponents needed to do more than rebut Finnis’ account of the classical writers. They needed to show that his account is unreasonable or incompetent-not just debatable or inadequate.

Nussbaum tried to destroy Finnis’ contentions by saying that his moral argument was a sectarian Catholic view without foundation in the secular and rational “natural law” views of Plato, Aristotle, and the Stoics. She rejected Finnis’ appeal to Plato on the ground that it relied on English translations which falsified Plato’s texts. In reality, she maintained, neither Socrates nor Plato nor Aristotle had moral objections to homosexual conduct that did not involve coercion, prostitution, or the seduction of students. She repeatedly drew attention to her mastery of the classical languages and intimate familiarity with the classical texts, implying (falsely) that Finnis has access to classical writers only in translation. She went on: “I have to say that Finnis is no classicist. He’s a distinguished philosopher and religious authority, but he has no training in classics, and he has access to the ancient texts only through translations. He’s made a pretty cursory examination even of those. . . .”

Robert George of Princeton then gave evidence contending that the translations which Finnis had quoted were confirmed by translations of the same passages given by classicists accepted by Nussbaum as highly authoritative. Such classicists include Sir Kenneth Dover, the author of the leading book on Greek homosexuality and, according to Nussbaum herself, a “giant” in the field. Moreover, George argued that Nussbaum had misrepresented both Dover and Finnis.The decisive engagement was joined.

On the last day of the trial, Nussbaum filed an affidavit in which twenty-four single-spaced pages are devoted to these issues. On the same day, Finnis filled an affidavit of twenty-four double-spaced pages in rebuttal of Nussbaum’s oral testimony. George filed a short affidavit rebutting points made against his testimony in the first twelve paragraphs of Nussbaum’s affidavit. She had sent him those (but only those) paragraphs the previous day, together with a letter demanding that he retract his claims that she had misrepresented Finnis and Dover.

Nussbaum made some rather remarkable statements in court. In denying the validity of Finnis’ reading of Plato’s Gorgias, she directed the court to her “lengthier discussion of the [disputed] passage in [her] The Fragility of Goodness, ch. 5.” Presumably, she assumed that the judge would not go and look up the citation, for it turns out that chapter 5 of The Fragility of Goodness supports Finnis. In that chapter Nussbaum insists with great force that this very passage [Gorgias 494-95] shows how “the interlocutors” (Callicles and Socrates) share the “social prejudices” of “a Greek of Callicles’ class and background” in regarding the sexual enjoyment and activity of “the passive homosexual” as ridiculous, loathsome, disgraceful, shameful, and wretched.

In paragraphs 34 and 35 of her affidavit she further suggested that any allusion to homosexual pleasures in Gorgias 494-95 is restricted to those of “the male prostitute,” and that the court would find this substantiated in the same chapter of her book. This, too, was not the case. In that chapter (as again in chapter 7, p. 231) she unhesitatingly (and rightly) interprets the passage’s allusion, and its adverse normative judgments (which in a footnote, she actually goes out of her way to tell the reader she does not share), as including the activities and pleasures of any and every “passive homosexual.” But in court and in her affidavit she denied that Greek public morality or any great Greek philosopher ever made such adverse normative judgments. Such judgments, she maintained, came only with Christianity.

In fact the writings of Plato contain numerous condemnations of homosexual intercourse. Perhaps the bluntest and most withering comes in Laws 636c. Here Plato, speaking through the character of the Athenian stranger, rejects homosexual behavior as “unnatural” (para physin), describes it as an “enormity” or “crime” (tolmema), and explains that it derives from being enslaved to pleasure. Finnis had cited this passage, among others, to show that Plato, among other great pre-Christian thinkers, rejected homosexual acts on moral grounds. Thus, Nussbaum faced the daunting task of explaining away what appears to be Plato’s clear condemnation of acts she had claimed no pre-Christian philosopher had ever objected to.

How did Nussbaum deal with Laws 636c? Her strategy was to attack the translation relied on in Finnis’ first affidavit. “Repeatedly,” she said, Finnis imported into Plato’s text “things that are not in the Greek” and indeed whole “sentences” that “just are not there in the Greek.” This claim, which was crucial to the attack on Amendment 2 as bereft of any rational basis, was false.

Nussbaum cited only one particular to support her remarkable claim that Laws 636c does not condemn sodomy. She alleged that the Loeb translation of Plato’s Laws 636c by Bury is incompetent, prejudiced, erroneous, and unsustainable. According to Nussbaum, Bury’s translation makes Plato convey adverse judgments on homosexual conduct that Plato did not make there, or anywhere else. Nussbaum contended both in court and in her sworn affidavit that to find even a “nuance” of wrongdoing conveyed by the Greek words ton proton to tolmema, which Bury had translated as “enormities,” is outside the range of reasonable scholarly opinion. The conclusion: since Finnis found more than a “nuance” of wrongdoing, this part of his testimony was well outside the range of reasonable scholarly opinion.

Nussbaum’s contention about tolmema is insupportable. The very authorities whom she proposed to the court as trustworthy in these matters, Kenneth Dover and A. N. Price, translate it respectively as “a crime” and “crime of the first rank.”

In order to bolster her inaccurate claims about the state of scholarly opinion on tolmema in Laws 636c, she wrote precisely this in her affidavit: the “Liddle [sic, “Liddell”], Scott, Lexicon of the Ancient Greek Language, the authoritative dictionary relied on by all scholars in this area,” translates tolmema as “an adventure, enterprise, deed of daring” and includes no pejorative definition corresponding to Bury’s “enormities.” Note well: Nussbaum told the court that the dictionary from which she was quoting is “the authoritative dictionary relied on by all scholars in this area.” Yet if one looks at Liddell and Scott’s A Greek-English Lexicon (which was never entitled “A Lexicon of the Ancient Greek Language”), one finds, in addition to the definitions of tolmema recited to the court by Nussbaum, the plainly pejorative definition “shameless act.”

The reader may have noticed the blank space in my quotation of Nussbaum’s reference to the lexicon’s definition of tolmema. The affidavit almost certainly contained the words “Liddle, Scott, and Jones,” and the words “and Jones” were whited out. (As a matter of fact, a version of the affidavit with the words “and Jones” included was served on the defendants at the same time the “whited out” version was lodged with the court.)

This is no mere pedantic quibble. More than fifty years ago a large team of specialists under the leadership of Sir Henry Stuart Jones dramatically reworked the nineteenth-century lexicon compiled by Liddell and Scott. That revised dictionary (still known by classicists as “Liddell & Scott”) is in fact “the authoritative dictionary relied on by all scholars in this area,” including Nussbaum in her own published work. So Professor Nussbaum put a dictionary before the court as “the authoritative dictionary relied on by all scholars in this area,” but the quotation that she said was from that dictionary is in fact from a long out-of-date version of that dictionary, one that is not authoritative or relied upon by all scholars or indeed by any scholars. To have quoted from the truly “authoritative dictionary” would have destroyed the fundamental contention of Nussbaum’s oral evidence and of her affidavit; but to have allowed the court to know the truth about the long-superseded nineteenth-century source of her lexicography would have deprived her testimony of the appearance of authoritative support it so badly needed to offset the devastating counterevidence of Dover.

Nussbaum went on to claim that “in the thousands of occasions of its occurrence in the language,” “the word” does not once convey any nuance of wrongdoing. By “the word,” she meant tolmao in its various forms (for she had just referred to “Plato’s use of the word” in “many passages,” and the form tolmema itself occurs but once in Plato). She failed to inform the court that the very dictionary that she was citing (like its authoritative successor) indicates that tolmao’s primary meanings include: “to have the courage, hardihood, effrontery, cruelty, or the grace, patience to do a thing in spite of any natural feeling.” (Emphasis added.)

Nussbaum asserted the non-pejorative (“morally neutral”) character of all the “thousands of occasions of its [tolmao’s] occurrence in the language,” and appealed to the “many passages” where “Plato’s use strongly connotes approval.” What she withheld from the court is the elementary information that, in Plato’s Laws alone, about two-thirds of the uses of tolmao are manifestly pejorative, and many spectacularly so. For instance, the term signifies for Plato the depraved and abandoned shamelessness exemplified in such enormities as slaughtering one’s own mother, father, or brother, or robbing temples (all of which, according to Plato, deserve the gravest penalties, including death), as well as (just a few pages after Laws 636) the more generic shamelessness involved in saying, permitting, or doing what is shameful (aischron) (Laws 649d).

These matters were not belabored by the witnesses as some fascinating but arcane academic dispute, as Jeffrey Rosen’s account of the trial in The New Republic implied. This is no more a haggle about a word than the question of whether Tonya Harding knew about the Kerrigan assault “before” or “after” it took place is a trivial matter of what time it happened to be. It is noteworthy that neither Nussbaum nor the other participants knew then that Judge Bayless would not in the end rule on the “rational basis” question. (It may even be that his reticence to do so owed something to the dispute I am describing.) Whether Nussbaum could show that Finnis’ classical scholarship was distorted by his Catholic commitments was likely to be a critical part of the anticipated decision.

The Amendment 2 episode raises, as did the historians’ brief in Webster, the important question of ethical standards for academic participation in public policy debates. The question has yet to receive the attention from academics that it deserves. Nussbaum seems to have backed off her early demand for a retraction from Robert George. After Finnis devastatingly exposed her claims, she began to paint the whole affair as a good faith dispute among scholars.

But the Amendment 2 trial was not a scholarly disagreement. It was a matter of what it means to be and to hold oneself out as a scholar. More particularly, when one holds oneself out to public authority as a scholarly expert, does one forswear dissembling and distortion however deeply one desires to advance a cause? The link between behavior of the sort engaged in by Mohr and Nussbaum and the phenomenon of “political correctness” in the academic world is well worth considering. One can only imagine the fate of a historian who did what Mohr did as part of an effort not to support “abortion rights” but to protect fetal rights, or the fate of a philosopher who did what Nussbaum did not to advance the cause of the homosexual movement but to oppose it. Something in the academy has gone radically wrong.

Gerard V. Bradley is a professor at the University of Notre Dame Law School.

Pluralism and the Lost Art of Christian Apology

Christopher R. Seitz

What is the ministry of Christians in the pluralistic society of the 1990s? I teach Old Testament and so will begin by considering the Bible’s perspective on ministry in a pluralistic context. My larger question will be, ministry in the name of what, and to whom? We might assume that the answer to that question in our case would be: ministry in the name of Christ, to a pluralistic society.

Ministry in the name of Christ can of course be seen in the New Testament, so we might hope to take our cue from what we see there. But when we raise the question, “to whom,” and answer, “to our pluralistic society,” problems arise. It is not clear how close the fit is between the world addressed by Paul and the apostles and the world in which we live and move and have our being. There can be no doubt that those confronted by the Gospel of Jesus Christ in the New Testament represented a religiously pluralistic society. The book of Acts shows Christian ministry in a wide variety of contexts. “Great is Artemis of the Ephesians” we hear one group cry; another appeals to Caesar and the Roman state as divine order personified; another sets up a statue to an unknown God; one even worships a stone that fell from heaven.

In the New Testament, in other words, religious pluralism is firmly in place, and religious issues and conflicts are no laughing matter. A shrine to an unknown god makes a fairly ironic statement, but it is still some distance from what we mean by secularity. Atheism and secularity find no place in either the Old or the New Testaments; in the ancient world, the debate was not whether God existed or could be talked about or related to public actions, but about who God is and what God requires. Who God is has immediate consequences for how men and women are to act in the “real world,” not just in their shrines and sacred places.

Things are different today. Where pluralism in the New Testament is quintessentially religious, for us pluralism involves ethnicity and race and class and gender. Pluralism in modernity takes us out of the realm of competing religious claims and into another realm where we speak of distinguishing “secular” from “religious” perspectives. We talk about separating church and state; religious beliefs, we maintain, can be isolated from other sorts of beliefs. Indeed, we press for these various sorts of distinctions automatically, as though they were self-evident. By contrast, when Paul goes to Athens, the New York of its day, no one regards him as quaint or peripheral when he describes all Athenians as “very religious.” Some of them, it is true, scoff at the notion of the resurrection of the dead-not, however, because they want to keep religious beliefs out of the realm of public discourse, but because, to their minds, it is bad religion.

My point here is not to challenge America’s separation of church and state. But I do confess to being concerned that one tendency of that separation has been to make religion a private matter, or, if public, tolerable only in the realm of good deeds (e.g., care for the homeless) and not as part of serious public discourse and reflection. It’s hard to imagine serious, ongoing, religious discussions on CNN or MacNeil-Lehrer. Yet serious religious discourse is precisely where Paul began at Athens and in many other places.

In this sense, modern Christians are at a disadvantage compared to Paul. When we speak about ministry in the name of Christ to a pluralistic society, we could never lead off with the declaration, “I perceive that in every way you are very religious,” and then launch into a public debate designed to convince the already “very religious” about the superior claims of Christianity or the inadequacy of the religion they presently adhere to. We would have to take the opposite tack: “I know you’re not a religious person, but have you given any thought to . . .” In short, to talk about the way ministry in the name of Christ is conceived within the Bible is to see at once how different that context is from our own.

If we do not recognize this difference, two problems may result. We might assume, first, that ministry in a pluralistic society really does not involve beliefs and convictions that truly matter and in fact lie at the heart of Christian faith, and prefer instead to focus on actions alone or private piety immune from the strains of public discourse. Yet specific beliefs and convictions are what Paul is most concerned about. Second, we might assume that the Bible and the world it describes has an immediate fit with ours where it really doesn’t, pluralism being for us of a secular or intra-denominational character-two perspectives absent from the pages of the Bible. Let me elaborate this second point more fully. My concern in pointing out the difference between the Bible’s world and our own is not to render it outmoded or irrelevant; it is rather to suggest that the distance of our world and its conceptual framework from that of the Bible is a problem for us, not for the Bible.

If we are going to talk about ministry in a pluralistic culture, we must begin with what has been called “the scandal of particularity.” Here the Bible’s perspective is helpful. The Bible does not assume that God can be known or experienced generally. God reveals himself fully only to Israel, and within Israel, to a few chosen individuals whose responsibility is then to pass on what they know to others within Israel. Only in this way does Israel learn that God’s ways will eventually have to do with other nations and peoples, beyond her orbit-whether they know it or not, care about it or not. Now the modern will object that this is because the Bible is written from Israel’s own perspective-but that is the whole point. The very truth of the revelation of God in Scripture has to do with the Scripture’s attachment to a particular people, whom God has elected for a special and rather burdensome task. In this consists its claim to be Holy Scripture. No election, no particular revelation, no Holy Scripture.

One clear implication of this controversial point is that knowledge of God must be communicated socially-literally, by word of mouth, from God, to Moses, to Israel, and outward, in the fullness of time, to all nations and peoples, penetrating every pluralistic pocket. Psalm 78 summarizes this perspective: “God established in Jacob a testimony, in Israel he appointed a law, which he commanded our fathers to teach their children; that the next generation might know them, the children yet unborn, and arise and tell them to their children, so that they should set their hope in God.” Not God in general, but Israel’s named LORD, in particular, who has acted in specific and even hidden ways with his own particular people.

Consider how removed and in fact offensive such a notion is to modern, channel-surfing sensibilities. Immediate access to everything, whenever we want it, is the watchword of the information superhighway. Would it not be unfair and undemocratic, we may cry as Americans, for something so important as knowledge of God not to be universally available to any individual, directly, without any sort of interference? A direct cable hook-up. And as Christians, it may strike us as offensive to be reminded that what we know of God we learn through the witness of another people’s scriptures, which become our own only because that people’s king has declared us to be his people by adoption. “Now remember, you Gentiles,” Paul says in Ephesians, “remember that you were at that time separated from Christ, alienated from the commonwealth of Israel, strangers to the covenants of promise, and without God in the world.” Only through Christ do we Gentiles become fellow heirs, through adoption, of promises once preserved within the bosom of Israel.

Or consider the wider witness of the New Testament. Throughout the book of Acts, Paul’s appeal to God in Christ is made on the basis, not just of his personal experience (which looks pretty unrepeatable), but on the witness of the scriptures, the Old Testament. Acts ends with Paul in Rome “testifying to the kingdom of God and trying to convince them about Jesus both from the law of Moses and from the prophets” (28:23). Paul uses Israel’s own literature to witness to Christ, to Jew and Gentile. There is no separate strategy for the Gentiles, i.e., use the scriptures for Jews, appeal to general religious instincts for others that have no point of contact with those scriptures. The one decisive message of God in Christ is rooted in an ancient witness and ancient promises. In the New Testament there is no New Testament, but only the scriptures of Israel which testify to Christ and reveal him and the Father to the world beyond Israel’s own borders.

The point here is that Christian ministry in a pluralistic society does not start outward, out there, and move inward. The Church’s primary task is to be the body of Christ, to build itself up in the knowledge and love of God. To love the neighbor as oneself is a commandment like the first, but it is not a replacement for the first. Paul’s overriding concern is not love of neighbor for its own sake, but the knowledge and love of God-a particular God revealed particularly in Christ-who has the power to give life in ways neither the neighbor nor the world ca