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

• Author: Day, David S.
• Position: Book review

Professor Martha C. Nussbaum's new book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality, (1) is a comprehensive and thought-provoking contribution to the literature on the Religion Clauses of the First Amendment to the federal constitution. (2) From the days of the Warren Court with "strict neutrality" for the judicial review standard under the Establishment Clause and "strict scrutiny" for the Free Exercise Clause, there has been a remarkable decline in the protection given to individuals under the Religion Clause doctrines. (3) Nussbaum traces part of that decline. Here, I am reviewing Nussbaum's book and some of its substantive positions. In addition to a review of the book's substance, I am taking this opportunity to express some thoughts about certain issues regarding Free Exercise doctrine that are, in my view, currently "unsettled" or controversial.

In Part I of this essay, I will review the various chapters and outline the themes that Nussbaum has presented. I will indicate aspects of Nussbaum's book that provided new information or that were persuasively presented. In Part Il of this essay, I will comment on what, in some cases, seems to be an incomplete discussion of certain issues. While I generally agree with the various points Nussbaum makes, I shall note my areas of disagreement.

In this era where the doctrines regarding both Religion Clauses are in flux, it is important to have contributions like Nussbaum's. It is also important to work through the implications of the suggestions made in such literature, especially doctrinal or practical implications. (4)

1. REVIEW AND THEMES OF LIBERTY OF CONSCIENCE

   1. OVERVIEW

      In her introductory chapter titled "Introduction: A Tradition Under Threat," Nussbaum, a Professor of Law and Philosophy at the University of Chicago Law School, lays out in a direct fashion what she considers to be the tradition of American religious tolerance. (5) She identifies this general tradition with six "normative principles." (6) I appreciate that Nussbaum is stating them as a historical matter since they represent her "tradition under threat." (7) The six normative principles are:

      (1) The Equality Principle

      (2) The Respect--Conscience Principle

      (3) The Liberty Principle

      (4) The Accommodation Principle

      (5) The Non-Establishment Principle

      (6) The Separation Principle

      The order in which these principles are stated reveals the primary thrust of Nussbaum's work. She believes that, above all else, the two Religion Clauses working together are primarily about equality of religious liberty. (8) Again, at least at this early juncture in the book, there has been little authority or discussion to substantiate equality as the most important principle, let alone the irreducible bedrock, of the Religion Clauses. Nussbaum develops the case for her principles in the remaining chapters.

   2. CHAPTER TWO: ROGER WILLIAMS

      In Chapter Two, the historical background of the Religion Clauses is traced, particularly by tracking the career and life of Roger Williams and the development of the colony and state of Rhode Island. (9) This historical overview sets the foundation for Nussbaum's analysis. I think there is a great deal more to the historical tradition of tolerance than just Roger Williams, but Roger Williams certainly illustrates the early American concern for religious liberty and liberty of conscience. (10) In general, this chapter demonstrates the historical roots of the book's analysis.

   3. CHAPTER THREE: RELIGION IN A NEW NATION

      1. The History of the Religion Clauses

         In Chapter Three, Nussbaum traces more generally the history of religious liberty in America and what she considers religious equality in early American history. (11) This includes a discussion of the experience in Virginia, particularly regarding James Madison. Madison's famous Memorial and Remonstrance Against Religious Assessments is a central feature of her historical treatment. (12) As part of this discussion, Nussbaum agrees with the Supreme Court's early consensus about Madison' s Memorial and Remonstrance in Everson. (13)

      2. "Misleading" Competing Theories Are Critiqued

         In this chapter Nussbaum also deals with what she calls "Two Misleading Theories." (14) She has a critique of Justice Thomas who has advanced the theory that the First Amendment's Establishment Clause is not incorporated against the states. (15) Nussbaum also attacks the theory of non-preferentialism that former Justice Rehnquist advocated in his dissenting opinion in Wallace v. Jaffree; Nussbaum concludes that Justice Rehnquist in Wallace "is singularly unconvincing." (16)

         It is not unusual to find a critique of Justice Rehnquist's analysis. Nussbaum, however, seemed to add some information about the flaws in the non-preferentialism theory. She pointed out that the state of Virginia had a nonpreferentialist religion clause proposed and that the state of Virginia had rejected it. (17) I think this is a helpful background.

         Nussbaum also uses the misleading theory of non-preferentialism to discuss the use and interpretation of post history. She concludes that the Justices' use of post-drafting history is "not very useful." (18) In this regard she argues for her separation principle as part of her equality thesis since "[s]eparation ... was a way of respecting human beings." (19)

   4. CHAPTER FOUR--THE STRUGGLE OVER ACCOMMODATION.

      This Chapter provides a precedential analysis of both the modern Establishment Clause and Free Exercise doctrines. (20) In her review of the modern (i.e., post-Everson) doctrine, she focuses on the terminology "accommodation." (21) For Nussbaum, this is a shorthand term for discussing the status of religious minorities in a world of majority law. Following Judge McConnell's early analysis, Nussbaum argues that even at the time of the founding, minorities could receive some degree of "accommodation" from the majority and its established churches. (22) This is the basis for considering her accommodation principle consistent with the Framers intent. (23)

      In discussing the case law, Nussbaum moves on to the Free Exercise doctrine. (24) She first discusses Sherbert v. Verner. (25) It is her position that the Sherbert rule, which was basically strict scrutiny, protected religious minorities. (26) In particular, she argues that studies show that the Sherbert analysis better protects religious minorities than the doctrine under the Smith decision. (27)

      Nussbaum, like all others reviewing Free Exercise doctrine, discusses the Smith decision. (28) She considers Smith to be the demise of the accommodation tradition and, thereby, concludes that Smith is inconsistent with the principles of the religious tradition. (29) She particularly scorns the notion of "hybrid' rights that Justice Scalia used in Smith. (30)

      Since Nussbaum believes that Smith "put a dagger into the heart of minority religious freedom," she is highly critical of Smith. (31) She concedes that Smith has not been nearly as harmful to minority religions in practice as it appeared to be when the decision was first announced. Because of the Religious Freedom Restoration Act (RFRA), (32) the use of the "hybrid" analysis, and the use of the unemployment compensation approach from Sherbert, Nussbaum concludes that Smith hasn't been as bad in practice as one would have feared in 1990.

      With respect to what she calls the accommodations struggle, Nussbaum eventually indicates that she agrees with the approach taken by Justice O'Connor in the Smith. (33) She wants "judicially mandated exemptions," and this distinguishes her position from the preference for legislative resolutions taken by Justice Scalia for the majority in Smith. (34)

      Nussbaum continues this line of analysis in chapter five by addressing one of the questions proposed most recently by Professor Hamilton: whether a judicial system and judicial review can be counted upon to protect religious liberty under the Free Exercise Clause. (35) Whereas Hamilton concludes that the judiciary cannot be trusted, (36) Nussbaum is more optimistic. She believes that there should be a mixed approach to this issue, where accommodations...