Liberty of Conscience: In Defense of America's Tradition of Religious Equality.

• Author: Nichol, Gene R.
• Position: Book review

LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY. By Martha C. Nussbaum. New York: Basic Books. 2008. Pp. 406. $28.95.

INTRODUCTION

Understanding and crafting an American jurisprudence of religious freedom is tough sledding. The religion clauses of the First Amendment--addressing establishment and free exercise--can seem to point in opposing directions. Any ascertainable wall of separation between church and state is thin, and uneven, and evolving, and permeable. We have embraced practices, historically, that seem difficult to square with meaningful interpretations of our asserted strictures. Many bemoan efforts to limit religious discourse and symbolism in a democratic public sphere, and the standards we employ are conceded to be "in nearly total disarray." (1) Some of our most thoughtful scholars despair of doctrinal improvement. (2) The merger of public and religious power has become an increasing focus of our electoral and political contests. Our populace, meantime, grows dramatically more religiously diverse. And, in the broader world, the clash of sectarian combatants continues to blossom, as the appearance of effective solutions subsides.

Given such circumstances, the decision by one of the nation's leading intellectuals to turn her perceptive attentions to our constitutive standards of religious liberty is beyond welcome. Martha Nussbaum's (3) hugely prolific, and often path-breaking, body of scholarship (4) moves with grace and fire from Aristotle to feminism, sex, social justice, shame, desire, tragedy, law, liberal education, capability deprivation, and modern India--and back again. Her work often also evinces a profound respect for human dignity. (5) Unsurprisingly perhaps, Liberty of Conscience: In Defense of America's Tradition of Religious Equality employs the tools of philosophy, religion, history, cultural study, politics, and law in an important reexamination of our First Amendment landscape. It is crafted with power, passion, perspective, predisposition, and, often, a surprising moderation--though I think it fair to say that she seeks a stouter and more prohibitive interpretation of both religion clauses than they presently enjoy. She also carries, in this venture, the modest advantage of the outsider--at least when compared to veteran authors who tread the more deeply worn paths of much of our best church-state scholarship. (6) It is my sense that Nussbaum's contribution may well change the way we see the core of freedom of conscience.

Nussbaum makes much of the potent and, for her, defining link between religious liberty and the cause of equal human dignity. For Nussbaum, "equal rights of religious conscience" assure that citizens "enter the polity 'on equal conditions' ... want[ing] not just enough freedom, but a freedom that is itself equal.... being equally respected by the society in which they live" (p. 19). The term, of course, also embraces a liberty component--"a special respect for the faculty in human beings with which they search for life's ultimate meaning" (p. 19). Largely casting aside the traditional driving metaphor of separation, (7) she locates an equal respect for individual conscience at the heart of religion jurisprudence. The press of equality, understood as "nondomination or nonsubordination" (p. 21), she claims, "is the glue that holds the two clauses together" (p. 104). The assurance that no religion will be set up as orthodox, "defining some citizens as dominant members of the political community and others as second-class citizens" (p. 5), is the lodestar of constitutionally mandated religious protection. A society affording full and equal membership is obliged to assure a corresponding respect for equal rights of religious conscience--"the faculty in human beings with which they search for life's ultimate meaning" (p. 19). So understood, "an equal liberty of conscience" both explains religion's preeminence in the American Bill of Rights and its centrality to a constitutional scheme designed primarily to protect members of the minority from inappropriate overreaching by the majority (pp. 21-24).

My purpose here is fourfold. Part I outlines Nussbaum's thesis and her similarly interesting, if perhaps not always completely consistent, applications of it. Part II touches on some challenges and potential shortcomings her theory presents--for clearly there are such. But, in Part III, I argue that her wide-ranging study of the work of the religion clauses nonetheless touches something residing at the core of American citizenship. No bosses. No masters. No insiders. None outcast. Finally, and far more idiosyncratically, in Part IV I explore and expand on Nussbaum's thesis in light of a modestly serious and rather public dispute over religious equality that occurred at the College of William and Mary during my presidency there. (8) A disagreement over the display of religious symbols in a public university, to my surprise, echoed more in traditional claims of equality and privilege than I would have assumed. I am candid in claiming that my own experiences suggest, perhaps unfortunately, that Nussbaum is rather acutely on to something when it comes to the central meaning of the protection of religious liberty in a diverse and democratic culture. A respect for the equal status of dissenters animates the religion clauses and highlights the crucial nature of their implementation. It suggests, as well, that the road ahead may be as controversial as the one behind.

1. EQUAL RIGHTS OF RELIGIOUS CONSCIENCE

   1. Nussbaum's Theory of Equality

      Drawing pointedly on the work of Roger Williams, the founder of Rhode Island and a staunch advocate of religious freedom, Nussbaum emphasizes the paramount role that respect for religious conscience plays in a society committed to the equal dignity and respect of its members. She dismisses out of hand the constraining interpretations of the religion clauses offered by Justices Thomas and Scalia--as well as those of less-strident accommodationists. (9) She also confesses her overarching wariness of the "organized, highly funded, and widespread political movement [that] wants the values of a particular brand of conservative evangelical Christianity to define the United States" (p. 4). Williams sought, in her view, not merely to "protect religion from the impurity of state power" (p. 41)--but to temper the exercise of public authority with the recognition of "the preciousness and dignity of the individual human conscience" (p. 51). The Rhode Island Charter itself asserted that "'[n]oe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted or call[ed] in[to] question, for any differences in opinione in matters of religion, and ... [shall] freely ... enjoye his ... owne judgments and consciences, in matters of religious concernments'" (p. 49). Williams's opposition to coercion reflected an indignation that those who speak "'so tenderly for [their] owne, hath yet so little respect, mercie, or pitie to the like consciencious perswasions of other Men.'" (10) "'I commend,'" he wrote, "'that Man whether Jew or Turke, or Papist, or who ever that steeres no otherwise then his Conscience dares ... [f]or ... you shall find it rare, to meete with Men of Conscience.'" (11)

      For Nussbaum, Williams's dictates reflect the Framers' sense that life's search for meaning, for ultimacy, is the defining quest of the human condition (p. 37). Each equal member of a commonwealth, accordingly, must be allowed to conduct his exploration without interference from his neighbors or his government (p. 37). Presaging James Madison's subsequent demand in the famed Memorial and Remonstrance for "an equal title to the free exercise of Religion according to the dictates of conscience" (p. 72; internal quotation marks omitted), Williams built on the Stoic ideal that merely by virtue of being human, we share in a portion of the divine (p. 78). As a result, we can claim equal worth in virtue and capacity for moral striving (p. 45). And we can demand an equal respect from the state in carrying out the defining effort.

      Religious freedom, therefore, is intimately tied to an equality of standing in the public realm. The Establishment Clause and the Free Exercise Clause further that pointed mission. "[E]qual rights," Nussbaum writes, "are at the bottom of both" clauses (p. 104). "[E]stablishments, however [purportedly] benign, create ranks and orders of citizens, defining the status of some as unequal to that of others" (p. 75). The metaphor of separation of church and state, then, is, "fundamentally, about equality, ... the idea that no religion will be set up as [orthodox], an act that immediately [creates] outsiders" (p. 12)--elevating the status of some and diminishing that of others. Such "in-group favoritism," the Constitution "utterly reject[s]." (12) This mirrors, of course, Justice O'Connor's much later claim in Lynch v. Donnelly that "[e]ndorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message." (13)

      Nussbaum argues, therefore, that the tough work of interpreting the strictures of the religion clauses must be accomplished through the lens of equality. Separation of church and state will not get us there. None believe that a city fire department should be barred from saving a burning church, and almost all agree that government should not subsidize sectarian religious instruction (p. 12). A bare demand that they occupy distinctive realms is unhelpful. The "key thread" of religion inquiry, instead, is a right to equality of religious conscience (p. 21). This will not, of course, eliminate the varied arenas that require careful examination and evolving, perhaps tentative, exercises of...