How should religious beliefs and organizations figure in our political life? At no time in recent memory has this question aroused the passion it does now, thanks to a president who reiterates the importance of his evangelical Christian beliefs and to the Supreme Court’s recent far-reaching changes in the interpretation of the First Amendment’s guarantee—in the Establishment and Free Exercise Clauses—that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
In truth, we face not one crucial question about religion and government, but four related ones. The first question is what accommodations government should make to the exercise of religion. Should it exempt religious pacifists from military duty, permit Amish parents to withdraw their children from school after the eighth grade, or allow the Native American Church to use peyote during worship? Should any such exemptions from ordinary legal requirements be extended to people with strong nonreligious claims to the same privileges? How far should legislators decide these matters; to what extent should courts do so as part of enforcing the Constitution?
The second question concerns the government’s sponsoring or endorsing particular understandings of religious truth. Should public school teachers lead prayers, or complement the teaching of evolution with ideas of intelligent design? Should winter holiday displays on public property include crèches? Should the Pledge of Allegiance contain the words “under God?” Do these practices amount to forbidden establishments of religion? Related questions arise about the discourse of high officials. Should they, like George W. Bush, keep referring to their own religious convictions and employ rhetorical expressions that appeal to cobelievers?
The third question involves financial assistance. Religious groups offer a wide range of social services, including hospitals, adoption agencies, food kitchens, drug rehabilitation programs, and schools. Should public money assist these endeavors, so long as the state does not favor any particular religion or favor religious efforts over nonreligious ones? If the government can, consistent with the Establishment Clause, pay for these services, should it? If so, what conditions should it set regarding those who receive and provide the services? More particularly, when it pays the bill, should it also bar religious discrimination? Finally, to what degree should religious organizations and those who contribute to them receive relief from property, sales, and income taxes?
The fourth question, although a staple of political philosophy during the last quarter-century, is the least understood. It concerns the explanations citizens and officials offer for their political positions. Should everyone rely on “public reasons,” not private faith, when they take part in the political processes of liberal democracies, or may people rely on whatever premises they find most convincing? The initial thought, that people relying on religious principles necessarily promote their religion, is mistaken. Consider the impoverished lives of animals subjected to factory farming. Suppose someone supports a law to assure a more tolerable existence for animals raised for human consumption because she believes God made other animals not purely for human benefit but as independently valuable creatures deserving a decent level of care. In supporting the law she does not impose her religious views; rather she uses her deep understanding of reality to protect creatures that deserve protection. That people should rely on public reasons does not simply follow from the principle that government should not promote religion.
In Liberty of Conscience, Martha Nussbaum, a philosopher and public intellectual, attempts to provide answers to these questions. Governments, in her view, should make accommodations to the concerns of religious conscience and should extend these to the expression of nonreligious conscience as well. Governments should not engage in any endorsement of religion, however inclusive. Religious groups and believers should participate on an equal basis in programs that aid nongovernmental providers of social services. On the fourth question, about the kinds of discourse that are appropriate in justifying political preferences, Nussbaum indicates in passing that she favors the “public reasons” position I have just summarized.
At the heart of Nussbaum’s approach is her claim that shielding religious conscience is supremely important for any society that respects individuals and treats them with dignity. Conscience for her is not limited to convictions about how people should act; conscience is “the faculty in human beings with which they search for life’s ultimate meaning.” Any society that acknowledges the equality of citizens should respect their consciences equally, a respect extending to nonbelievers. According to Nussbaum, the Free Exercise and Establishment Clauses should be understood mainly to guarantee equal liberty of conscience. This broad approach, she acknowledges, does not eliminate many difficult exercises of judgment, and courts rightly leave some issues to legislative resolution; but courts, she argues, should not abdicate the task of protecting liberty of conscience to the legislative and executive branches.
Much of Liberty of Conscience displays various applications of Nussbaum’s general theory, but we can see better why that theory matters in practice if we understand some of the alternatives she rejects along the way. She opposes the Supreme Court’s present doctrine that the Free Exercise Clause does not protect religious practice against reasonable general laws. Rather, she argues, for example, that those who take peyote as a central aspect of their worship should, under the Free Exercise Clause, have the right to do so, despite a reasonable general law against the use of peyote. She also opposes a focus on a person’s degree of religious liberty that is inattentive to how that liberty compares with the liberty of others. If the law protects refusal of military service on grounds of religious conscience, it should, she argues, protect such refusal on non-religious grounds as well. In respect to the Establishment Clause, she rejects the narrow interpretation that it forbids only the promotion of particular religious faiths, or only coercive government practices, or applies only to the federal government (not states).
In defending her thesis Nussbaum combines philosophy, legal doctrine, and history. Since she does not suppose that judges should be wedded either to the original understanding of various constitutional clauses or to the precise reasoning of earlier cases, her fundamental argument—made with force, eloquence, and occasional oversimplification—need not rest on any specific account of history or prior decisions. Partly to persuade those whose views about constitutional adjudication differ, Nussbaum lines up historical and judicial sources in support; as I shall suggest, some crucial aspects of these accounts are one-sided.
Nussbaum’s own understandings of complex constitutional issues recognize nuances that committed people on both sides often miss. Raised as an Episcopalian, a convert to Reform Judaism who remains seriously religious, she shows how not only skeptics but deeply religious citizens can welcome a political order in which governments refrain from promoting religion; and she offers many appealing proposals for resolutions of highly contested issues. Recognizing strong countermovements, Nussbaum nevertheless asserts that the dominant ideal in American history has been respect for an equal liberty of conscience. Early on, she asserts that the country “respects people’s committed search for a way of life” and “has long understood that liberty of conscience is worth nothing if it is not equal.”
One doubts, however, that Nussbaum really believes liberty of conscience is worthless if it is not absolutely equal. She rightly contends that any country with an established religion does not respect various religious consciences equally; but a country with a weak establishment that grants generous liberty of conscience (as with the Church of England, for example) is surely preferable to outright oppression of all but the favored faith.
Perhaps this rhetorical slip is of little moment, but Nussbaum’s problems with history begin on the previous page, where she writes that the Pilgrims crossed the ocean to recover a space of “liberty and equality” denied them in England, but that the settlers forgot the lesson of equality implicit in the first Thanksgiving. It is true that the early Pilgrims, seeking a haven for their own faith, were tolerant of diverse religious outlooks; but they hardly had a developed philosophy of equal respect for conscience. And the more numerous Puritans who soon followed explicitly rejected such notions of equal respect, less because of the harsh conditions Nussbaum emphasizes than because of a conviction that their “City upon a Hill” should be constructed according to their religious premises.
Nussbaum devotes a substantial chapter to Roger Williams, whose Rhode Island society practiced religious toleration and who defended broad liberty of conscience in The Bloudy Tenent of Persecution, well before John Locke’s influential A Letter Concerning Toleration. Williams believed that people of diverse religious understandings, capable of morally virtuous lives, could build a common life together. Unlike Locke, he perceived the vulnerability of conscience to intolerant public authority, regarding persecution as “soul rape.”
Contrary to the standard view, built on Williams’s extensive use of theological language and his unremitting opinion that true Christians (a small number) should separate their religious practices from the unregenerate masses, Nussbaum suggests that his conclusions about conscience did not rest heavily on his own theological understandings. She goes further in treating John Rawls’s work as articulating and developing Williams’s ideas. Rawls claimed that members of a liberal democracy should not rely on their own religious perspectives and other “comprehensive” views to decide fundamental political issues, but rather should seek shared premises and common ways of discovering facts.
Nussbaum provides little support for her ascription of only minimal importance to Williams’s theological premises—a view that may actually reduce the potential appeal for modern evangelical Christians of his plea for equal liberty of conscience. She gives us no basis to suppose that Williams thought citizens should put aside their Christian understanding in deciding whether their governments should aid the poor or protect seriously impaired newborn infants.
One problem with Nussbaum’s continual references to Williams’s views as a primary source of our traditions is the failure of his systematic writings to exert significant influence in the colonies and early republic. When Nussbaum speaks of “the success of his arguments,”1 it is unclear whether she thinks that outsiders were affected by actual practices within Rhode Island or independently came to embrace ideas similar to his.
Nussbaum’s sketch of the history of anti-Catholic bias relates more directly to her interpretation of the Establishment Clause. That history is relevant to whether concern about state support of institutional religion has a solid ground, apart from concerns about equality.2 In a chapter called “Fearing Strangers,” which also describes appalling treatment of Mormons and Jehovah’s Witnesses, Nussbaum’s theme is that anti-Catholic bias in the mid-nineteenth century, directed against immigrants from southern and eastern Europe, led to an emphasis on separation of church and state by nativists who, all the while, were entirely comfortable with Protestant public schools. Intellectual liberals in the mid-twentieth century, who fueled modern opposition to aid for parochial schools, were also biased against Catholics—failing to recognize the Church’s long history of rational approaches, by way of natural law, to morality and politics, unaware of the rigorous, thoughtful education provided in leading Catholic schools, and neglectful of liberal Catholic thinkers, such as Jacques Maritain and John Courtney Murray.
Timothy Hall, in Separating Church and State: Roger Williams and Religious Liberty (University of Illinois Press, 1998), writes of Williams having "no apparent influence" in the century after his death in 1683, and of Rhode Island as a "despised outcast," regarded by most Americans "as a kind of social outhouse." Nevertheless, he sees the positions of Williams as representing a cogent defense, from a stance of dogmatic religious separationism, for religious liberty and disestablishment.↩
For a recent book that is more relaxed about government expression than Nussbaum and stricter about aid to institutional religion, see Noah Feldman, Divided by God: America's Church-State Problem—and What We Should Do About It (Farrar, Straus and Giroux, 2005).↩
Timothy Hall, in Separating Church and State: Roger Williams and Religious Liberty (University of Illinois Press, 1998), writes of Williams having “no apparent influence” in the century after his death in 1683, and of Rhode Island as a “despised outcast,” regarded by most Americans “as a kind of social outhouse.” Nevertheless, he sees the positions of Williams as representing a cogent defense, from a stance of dogmatic religious separationism, for religious liberty and disestablishment.↩
For a recent book that is more relaxed about government expression than Nussbaum and stricter about aid to institutional religion, see Noah Feldman, Divided by God: America’s Church-State Problem—and What We Should Do About It (Farrar, Straus and Giroux, 2005).↩