Liberty of Conscience
Martha C. Nussbaum

These pages: Liberty of Conscience

chapters 1–5

chapters 6–9 (here)



index pages:

Liberty of Conscience

Copyright © 2008 by Martha C. Nussbaum


The Establishment Clause

School Prayer, Public Displays
I. Establishment and Equality
Equal standing requires not just noninterference; it requires, as Madison saw, a symbolic politics that acknowledges equality and does not create ranks and orders of citizens. One might think the symbolic domain is unimportant. [...] What Madison saw, however, is that a failure of respect in the symbolic domain is like an insult, a slap in the face, and, moreover, it is the sort of slap in the face that a noble gives to a vassal, one that both expresses and constitutes a hierarchy of ranks.

How the abstract principles and goals embodied in the constitutional text should be applied to a changing social reality is a question that seems to require flexibility. Indeed, one major trouble has been a premature search for rules that can be mechanically applied. [...] As Aristotle said about justice, so here: it is crucial not to have standards that are mechanically applied to a convoluted and changing subject matter.

Recognizing complexity in the application of principles and standards is not, then, in itself problematic. It is to the credit of the tradition, on the whole, that it has allowed itself to get so baroque and contextual that it takes surprisingly many particular circumstances into account in deciding particular cases.

By now the idea that the Establishment Clause means that the public realm needs to be fair to citizens of all different religions, and to citizens of none, is under attack. Justice Scalia believes that the government may favor monotheism and disfavor polytheism, nontheistic religion, nonreligion, and even versions of monotheism that think of God as “unconcerned.” Justice Kennedy, while not accepting that radical proposal, seems to support the idea that the Establishment Clause prohibits only coercive support for religion, not support that consists in giving endorsements of religion, or even a particular type of religion. The late Chief Justice Rehnquist, while agreeing with tradition that government may not show favor to one religion as against another, argued that the government may generically favor religion over nonreligion. Most radical of all, Justice Thomas denies that the Establishment Clause applies to the states at all, so any state may establish a church if it so chooses, show favor to its chosen religion in the public schools, put up public displays that indicate government’s favor for a particular religious tradition, or fund only religious schools, or only schools of some particular religion. All these positions were once radical, situated on the fringes of academic scholarship. Today they are all lodged at the heart of the Court’s debates.
II. School Prayer: Equality, Coercion, and Peer Pressure
High school students and even high school principals are not paradigms of fair conduct, and it doesn’t take much knowledge of human nature to predict that violations of equal respect will be ubiquitous in any regime in which the state puts its muscle behind an orthodoxy of religious observance.
V. Public Displays: The Ten Commandments

Civil peace has traditionally been important, as a subsidiary consideration. But, as the early settlers knew all too well, there can be a peace that is oppressive, denying minorities equal respect. [...] Should we really say that a display that everyone likes and that isn’t stirring up trouble, because the offended minorities are too powerless to make trouble, is for that reason constitutional? This seems to be a very bad theory for an egalitarian nation to adopt.

Think of the Hindus, Buddhists, and Jains who joined the litigation, insisting that the display expressed the endorsement of Judaeo-Christian religion and disfavored the Hindu religion. Members of these religions are not very numerous in America. [...] Again, we can’t imagine peaceful Buddhists rioting because the Ten Commandments disfavor them. But that surely does not make it all right to send a message that these people are not fully equal citizens. So a threat to peace doesn’t seem to be necessary for an Establishment Clause violation. If what Justice Breyer really means to say is that the Court should not say that a violation is a violation when so doing would lead to violence, that is a different claim, but is it correct? Brown v. Board of Education could have been expected to lead to violence, and it did. Should the Court therefore have maintained silence?

Often, moreover, a focus on violence will in and of itself favor majorities and disfavor minorities, especially relatively powerful minorities. It’s a safe bet that a decision that shocks and upsets Christians will be more likely to lead to widespread tumult than a decision that disfavors Buddhists or Hindus, simply because there are a lot more Christians in the U.S.

VI. The Tradition Under Assault
The rhetoric of “separation,” applied without a deeper theoretical analysis, wrongly suggests that the goal of the Establishment Clause is to purify the public square of all reference to religion, in effect establishing secularism as the theory of government. Harping on the words “separation of church and state” has done a lot of harm to reasoned public debate in this area, because it obscures the important underlying issues and alienates people from one another. Separation is good, when it is good, because the fusion of church and state in question offends against other constitutional values, above all liberty and equality. The “endorsement test” makes good sense of all this, elaborating the foundational commitment to equality in the form of an applicable analytical framework.


Separation of church and state

Justice O’Connor makes it clear that this is not a theory of de minimis violations, violations too small for us to be worried about them. There are, she rightly says, no de minimis violations where fundamental constitutional rights are at issue. There are, however, cases in which the religious reference or language does not rise to the level of a violation. The reasonable objective observer, knowing the relevant facts of history, would rightly see these references as using religious language “for essentially secular purposes. One such purpose is to commemorate the role of religion in our history.” [...]

Four criteria are suggested as good things to look for when we ask about traditional religious language. The first is history and ubiquity: how old is the reference, how well embedded in tradition, and how widespread? [...] The second is absence of worship or prayer: the observance should not demand that people join in an act of worship. The third criterion is absence of reference to a particular religion. [...] The final criterion is minimal religious content. The reference should be “highly circumscribed,” so that people who want to avoid it can easily do so.

Contemporary Controversies

The Pledge, Evolution, Imagination, Gay Marriage, Fear of Muslims
II. “Under God”: The Pledge, Present and Future
The whole point of the pledge was that it was an act of quasi-worship, suited to inculcate strong patriotic emotions in young children. The whole point of adding the language of God was to make those same children think that we (unlike the Soviet Union) are in a nation that is protected by God. Barnette has sufficiently established that the recitation is not devoid of affirmation: that’s why the children had a legitimate grievance. Now the affirmation includes religious affirmation.



III. Debating Evolution

There are many sources of strife and bad behavior in human life. Religious extremism has sometimes been one of them, but so has atheistic political extremism, as in various violent Marxian regimes and the basically atheistic regime of Nazi Germany. So, too, has the extremism of profit, as in the violence of capitalist colonialism. The violence of men against women is one of the most long-lived and pervasive types of violence in human history, and it appears to have little to do with religious, political, or even economic ideologies [...]

There is much more to be said about how it happens that religious doctrines that internally favor peace so often lead to violence against one’s neighbors, but this phenomenon probably has much more to do with universal human frailty, and with the mobilizing power of ideologies, than with anything specific to religion or religions. It would be best if people could focus on combating bad behavior wherever it arises, rather than smugly suggesting that if we were all atheists, the world would be a more peaceful place. The history of Marxism certainly did not support that contention.



V. Fearing Strangers: Same-Sex Marriage

The idea that denying gays and lesbians a variety of public privileges under law is an essential part of Judaeo-Christian religion, something without which religion suffers a substantial burden, is, put just that way, unconvincing. There are so many parts of the Bible that believing Jews and Christians do not seek to enforce as public law: prohibitions on idol worship and heresy, for example, which cannot be enforced as public law because of the religion clauses themselves. There are also many biblical prohibitions that, in the modern era, strike most people as an implausible basis for public law [...] Same-sex acts, moreover, are treated in Leviticus exactly the way adultery is treated (20:10), and few Jews and Christians, however pious, still support criminal penalties for adultery.

Not all reasons for opposing same-sex marriage are based on irrational fear. But the reasons that are not based on fear do not look like public reasons, part of the shared ethical space we inhabit together; they look like theological reasons that are inside the private domain of the religions in question. [...]

Some people do offer purported public reasons against recognizing same-sex marriage. One such reason that is not very strong is that by admitting such marriages the state would thereby be endorsing “the gay lifestyle,” and thus insulting sincere believers for whom it is sinful. Certainly the state uses many considerations when it decides which marriages to recognize, as it does when it defines the family, but moral approval has never been salient among these interests. If moral approval were conveyed by allowing two people to marry, we would have a different regime of heterosexual marriage [...] Nor is it true of the public definitions of family that have prevailed in different times and places.


Same-sex marriage

VI. Fearing Strangers Again: The Alleged Muslim Threat

The burqa poses no problem that normal Chicago winter gear and surgical masks do not pose. So what is going on when people focus on it as a threat to a common culture and seek to ban or limit it? It seems fairly evident that what is really going on is a fear of difference and strangeness, fear of a nonmajoritarian lifestyle that refuses to assimilate. Jack Straw was at least honest when he concluded that the burqa is “such a visible statement of separation and of difference,” and was objectionable on that count alone.

Mutual respect imposes duties that are themselves mutual: the duty for each and every person to allow each and every person, majority and minority, a space for conscience to unfold itself, even in ways that are strange and surprising—so long as they violate no compelling state interest and respect the equal rights of others.




Toward an “Overlapping Consensus”?

The attack on America’s tradition of religious equality, as we have seen, is ongoing. It has been with us, in a variety of guises, from the very moment that there was such a tradition. The values that this attack, in its many forms, exemplifies (fear of the strange, a love of hierarchy, a desire to lord it over others) are probably older than the equality tradition itself. In each era of human history, it would seem, the value of equal respect for all human beings needs to be reforged and reestablished, in reaction against easier and more prevalent customs of unequal regard that have deep roots in human psychology. [...] We have the great good luck to live in a nation that has taken the principle of equal liberty of conscience to heart in its founding document. But history shows us that constant vigilance is required lest this value be narrowly and partially construed, or misapplied in ways that favor hierarchy.

Peace and Truth know that all is not well: we live in a world where, on balance, human beings behave pretty badly, and this means that we live in a world that needs good laws and persistent hardworking attempts to make them better. Like the Indians whom Williams knew and admired, Patience sits still and listens hard. Her waiting is a form of highly focused attention. Vigilant, hardworking, and modest, interested in really hearing what other people have to say, Patience is, we might say, the tutelary spirit of the law, the attentiveness and respectfulness that make vague abstract principles into a concrete reality by which we can seek to live together.



text checked (see note) Mar 2010

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I’m not sure what use I’ll make of this, but I didn’t want to return the book without keeping a list of Supreme Court case references from Nussbaum’s notes. I omit page numbers because they often refer to a particular quote, rather than the whole case.