Platonic Love in a Colorado Courtroom: Martha Nussbaum, John Finnis, and Plato's Laws in Evans v. Romer

Abstract

To the ridicule of the highbrow popular press and the surprise of classical scholars, Plato's Laws, a work which was mocked, even in antiquity, for its aesthetic frigidity, has enjoyed of late a remarkable fifteen minutes in the sun. In "expert witness" testimony and affidavits submitted in October 1993 to a Colorado district court in Evans v. Romer, and in subsequent clarificatory (and obfuscatory) articles, three prominent scholars, John Finnis, Martha Nussbaum, and Robert George, vituperatively contended over the potentially pejorative meaning of the word tolmêma at 636c of this lengthy Platonic dialogue. Finnis and George, for their part, argued that this term is inherently aspersive - "those first guilty of such enormities (tolmêma) were impelled by their slavery to pleasure" - and sought to show that this passage's characterization of homosexual sodomy as "contrary to nature" (para phusin) demonstrates Plato's antipathy toward homosexual conduct as well as his affirmation of the moral centrality of wedded heterosexual intercourse. Nussbaum, in rebuttal, claimed that this passage, when translated in a morally "neutral" manner-she prefers "those who first ventured to do this" - is generally supportive of her (and Plato's) view of homosexual relations as benign, even salutary. The pretext for these philological exertions in a Denver district courtroom was not, we note with some regret, the judge's abiding interest in the tolmaô verb family, but rather an issue of somewhat greater legal import. Did Amendment 2 to the Colorado Constitution-which forbade any state agency from designating homosexual, lesbian, or bisexual "orientation, conduct, practices, or relationships" as the basis for protected legal status" - constitute an impermissible establishment of religion on account of its allegedly irrational hostility toward homosexuals?