from
Liberty of Conscience
by
Martha C. Nussbaum

My contention will be that a key thread holding all the key concepts together is the idea of equality, understood as nondomination or nonsubordination (which might sometimes require differential treatment). A major part of not being subordinated will be to have equal standing or status in the public realm. Thus this conception is highly sensitive to dignitary affronts in the symbolic realm, even when they entail no material disadvantage.

The idea of equality has to be supplemented by an independent idea of the worth of liberty of conscience, since we might have been equal by all (equally) lacking religious liberty (as philosopher Thomas Hobbes urged, in the seventeenth century). That idea, in turn, rests on a view about the preciousness and vulnerability of conscience. But liberty is only fair if it is truly equal liberty.

As for neutrality, it is usually a good way to preserve the equality of citizens, but not always: sometimes differential favorable treatment is required, thus accommodation.

The idea that we are all solitary travelers, searching for light in a dark wilderness, led to the thought that this search, this striving of conscience, is what is most precious about the journey of human life—and that each person [...] must be permitted to conduct it in his or her own way, without interference either from the state or from orthodox religion. To impose an orthodoxy upon the conscience is nothing less than what Williams, in a memorable and oft-repeated image, called “Soule rape.”

This idea that each person’s inner and intimate searching is a precious living thing that must be respected by laws and institutions went well with the idea that we have to learn to live together on terms of mutual respect. Conscience, and its strivings, were the proper object of that respect. The free conscience, and the civil peace it requires, became the foundation of America’s distinctive approach to religious liberty and equality.

As we shall see, Americans have a recurring tendency to seek the comfort of orthodoxy during times of stress. Minorities often suffer from these anxious impositions of order. [...] Continual vigilance is required lest anxiety triumph over the spirit of love and peace. That is why the Puritan experience, and Williams’s response, are so important to ponder. When we find ourselves strongly inclined to use Cotton’s purifying rhetoric, we should at least consider the possibility that what we fight in others is actually something about ourselves that is difficult to bear, some loneliness and harshness about human life that make us feel small, afraid, and victimized.

Williams shows us a different way of living with uncertainty, a way involving civil peace and equal respect for each person’s conscience.

We do have separation of jurisdictions between church and state; but where people are concerned, they will rightly see the morality of public life as one part of their “comprehensive doctrine”—a part, nonetheless, that they can share with others without converting them to what they take to be the true religion.

This idea is a much more helpful idea to think with than the bare idea of “separation,” which might suggest that the state doesn’t have anything to do with the deep ethical matters that are so central to the religions. The state needs to be built on moral principles, and it would be weird and tyrannical to ask religious people to accept the idea that moral principles are utterly “separate” from their religious principles. [...] We must respect one another’s freedom and equality, the deep sources of conscience that lead us through the wilderness of life. We will only do this if we keep religious orthodoxy out of our common political life. But we can, and must, base that common life on ethical principles that, for many of us, also have a religious meaning and a religious justification. All we need to do, when we join with others in a common political/moral life, is to acknowledge that someone might actually have those ethical virtues, in the way that is relevant for politics, while not sharing our own view of life’s ultimate meaning. If we once grant that, then Williams’s other argument concerning fairness and impartiality will lead us to want a state that has no religious orthodoxy, that is, just in that sense, “separate” from religion.

In 1776, Virginia was drawing up a Declaration of Rights. George Mason had written a draft, stating “that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, . . . unless under color of religion any man disturb the peace, the happiness, or safety of society.” In his first major public act, Madison objected to the word “toleration” as too grudging, suggesting legislative grace rather than entitlement, and to the absence of the language of equality. He proposed, successfully, that Mason’s language be replaced by the statement that “all men are equally entitled to the full and free exercise of religion according to the dictates of conscience.” Toleration suggested hierarchy, as if it were by the blessing of the majority that the minority was not persecuted. That idea was going out, and the idea of human equality was coming in, with Madison in the vanguard. [...]

Madison also objected that Mason’s “peace, happiness, and safety” language was not protective enough; he suggested language that said government could interfere with the free exercise of religion only if equal liberty itself and the very existence of the State were “manifestly endangered.”

As we can see, there is no such unitary thing as “the intention of the framers.” The text we have is a committee construct. Like any committee construct, it involves compromise among people with different views. Nor should we necessarily believe that the meaning of the text for us today is given simply by what these words meant at the time. That is one theory of constitutional interpretation. In many case, however, we understand that our understanding of constitutional meaning evolves with new historical experiences. The Free Speech Clause, for example, probably had a relatively narrow meaning at the time of the Founding, protecting only some types of dissident political speech. When Eugene Debs went to jail in 1918 for violation of the Sedition Act (for urging people to resist military induction), there was almost universal agreement that the First Amendment did not protect him. [...] Even the most ardent originalists have not proposed reverting to the original understanding in this instance, though they may someday do so. People generally agree that reflection and experience have deepened our understanding of the abstract terms of the constitutional text.

It is even possible to argue that this change in understanding is, at a more abstract level, precisely what the original text meant: namely, the framers deliberately chose very general terms and did not spell things out in detail, precisely on account of their empiricism: they had decided to leave further specification to history and the processes of public debate.

Indeed, we might plausibly say that equality is the glue that holds the two clauses together. It is often obscure how they do go together, and their coexistence poses some legal conundrums. [...] But we can see that at the time the free exercise of religion was a major expression of human equality, one of the deepest ways in which the equal rights of citizens were to be either protected or infringed. Establishment, meanwhile, is a major threat to equality across a whole range of civil rights. Free exercise alludes to the individual conscience, establishment to institutional arrangements that either set up a hierarchy or fail to do so. But of course hierarchy is bad, ultimately, because of what it does to people, offending against their equality. The focus of the clauses is subtly different, but equal rights are at the bottom of both.

There was, then, a good deal of disagreement about how far accommodations are constitutionally compelled. We can see how the battle lines are drawn: on the one side, the ideas of Roger Williams, favoring an ample space for conscience to unfold itself and a spirit of mercy and gentleness in the law; on the other side, a fear that disorder and bias will plague any system in which laws applicable to all have minority exceptions. These same two positions contend today. [...] We cannot say that one side or the other represents the “true” position of early Americans. What we can say is that the understanding of equality used by the early anti-accommodationists is harsh and in a sense superficial, underrating or denying the damage done to conscience by majority laws that place asymmetrical burdens on minorities.

Native Americans have perhaps suffered more than any other U.S. religious minority from majority disdain and majority tyranny. This tyranny has included theft, violence, forced removal of children from parents, and the forced “reeducation” of these children so as to Christianize them and remove traces of their tribal beliefs and practices. Not least of the problems in the troubled relationship of majority Americans with Native Americans is a failure to respect Native American religions as religion. [...]

Native American religions are diverse; to some extent the contemporary sense of unity in belief and practice results from deliberate reconstruction. Nevertheless, one can generalize, to at least some extent, concerning what is currently accepted as the common core of Native American traditions. Native American religion is communal. It has no Bibles, no creeds, no sanctuaries. Nature and land play central roles in Native concepts of sacredness. Divinity is sought in a multifaceted relationship to the sacred in nature and in the universe, rather than in a relationship to a singular quasi-paternal God. For such reasons it was easy for many of the founders to assume that Native religion was hardly religion at all.

Under our Constitution, religion is special. The framers rejected wording that spoke in general of “rights of conscience” and chose wording that singled out religion for free exercise protection. [...] Especially since the law of accommodation is murky and has undergone some dramatic shifts in recent years, we need to think about the underlying principles embedded in our Constitution, and to try, at least, to figure out where they lead in this difficult matter.

One of the most central commitments in our constitutional tradition is a commitment to fairness, to treating citizens as equals, where that means that no hierarchies should exist under law in our nation. Religious membership and nonmembership should not be special sources of advantage or disadvantage under law. [...] The tradition’s reason for favoring accommodation was itself a reason of fairness: the majority makes laws that suit itself, and minority believers often encounter special, unequal burdens as a result.

We may get some help, I think, by returning to Roger Williams’s idea of conscience. For Williams, the faculty with which each person searches for the ultimate meaning of life is of intrinsic worth and value, and is worthy of respect whether the person is using it well or badly. The faculty is identified in part by what it does—it reasons, searches, and experiences emotions of longing connected to that search—and in part by its subject matter—it deals with ultimate questions, questions of ultimate meaning. It is the faculty, not its goal, that is the basis of political respect, and thus we can agree to respect the faculty without prejudging the question whether there is a meaning to be found, or what it might be like. From the respect we have for the person’s conscience, that faculty of inquiring and searching, it follows that we ought to respect the space required by any activity that has the general shape of searching for the ultimate meaning of life, except when that search violates the rights of others or comes up against some compelling state interest. Political respect is addressed, in the first instance, to a “capability” of people, one that demands both development and exercise; it is not addressed, except derivatively, to the functions such a faculty performs.

Today’s Americans are not better people. We are still vulnerable to panic and hysteria. Nor, very likely, are our Supreme Court Justices better people than Justice Waite and, certainly, the great Justice Frankfurter. What, then, has changed? Changing social norms have certainly played some part in creating a climate that makes some of the incidents described in this chapter unthinkable today. But legal argument has also played a creative role. What makes cases such as Reynolds and Gobitis unthinkable today is not just social change; it is also a tradition of legal argument that has gradually refined, deepened, and extended our idea of what free exercise requires.