At the first official meeting of the Law and Philosophy
Workshop, held on Monday, Martha Nussbaum presented selections from her recent
book, Liberty of Conscience: In Defense
of America?s Tradition of Religious Equality.
The first part of the reading provided an introduction to Nussbaum?s
thesis that equal respect is the best way to think about religious liberty. She
opens with two important Supreme Court religion cases, one construing the Free
Exercise Clause and the other construing the Establishment Clause. In Sherbert v. Verner, the Court held that
it was impermissible to deny unemployment benefits to a woman who could not
find suitable work due to the fact that her religion?s day of rest was
Saturday, not Sunday. In County of Allegheny of v. ACLU, the Court distinguished two
holiday displays inside and outside of a courthouse. The outdoor display, an
oversized menorah near a decorated Christmas tree, was framed as a ?salute to
liberty.? The indoor display was a traditional nativity scene including an
angel carrying a sign: ?Gloria in
Excelsis Deo.? The Court held that the second display was an
unconstitutional establishment of religion, but the first was not. In both of
these cases, Nussbaum sees an animating principle of equality. A large
component of the injustice involved in forcing Mrs. Sherbert to choose between
her job and her religion is the fact that this is a choice that other religious
people did not have to make because the local employers? policies already
accommodated them. The Court saw the denial of unemployment benefits as a tax
or fine on Mrs. Sherbert?s free exercise of religion and would not allow it. In
Allegheny, the Court was concerned
with whether the displays endorsed a particular religion. The problem with
endorsement, or establishment, of religion is that it sets up a hierarchy. It
is an announcement that those who are not members of the endorsed religion are
less than full citizens of the community that endorses it. It says, ?This is
what we believe. If you do not
believe this then you must not be one of us.?
The second section of the reading is dedicated to the
political philosophy of Roger Williams, philosopher, theologian and founder of
the
Rhode Island colony. Nussbaum explained at the workshop that the primary motivation for this
chapter was to lay out what spurred, both politically and philosophically,
Williams? strong dedication to religious liberty and equal respect. Additionally,
Williams? views influenced many thinkers that came after him, regardless of
whether or not they were aware that he deserved this credit. Perhaps most
notably, James Madison?s writings on the establishment of religion reveal a
similar thought process to that of Williams. This is significant because it
provides the basis for an originalist theory of equal respect. However, for
Nussbaum, not an originalist herself, this is not the main draw of the theory.
Roger Williams is credited with the concept of separation of
church and state, although this does not accurately capture his views on how
the state should, and should not, interact with religion. Nussbaum points out
that his real focus was on the ?evils of persecution, the primacy of individual
conscience, and the appropriate jurisdictions of the civil and religious
spheres.? The separation idea, though ubiquitous in American discourse on
religious freedom, has limited value as a guiding principle. We may agree that
public school teachers should not preach to students, but we most likely also
agree that police and fire departments should not ignore the pleas of churches.
How can we determine which of the above situations is more closely analogous to
the more difficult question of whether the state can provide remedial education
to struggling children at religious schools?
For Williams and Nussbaum, conscience is the capacity or
faculty to search for meaning in life. This is something that everyone has,
regardless of how, or whether, a person decides to exercise it. The principle
of equal respect is derived from the idea that conscience is the source of
human worth and dignity and is possessed by all. In the workshop there was some
resistance to the idea that it is the capacity, and not the successful
exercise, of conscience that deserves respect. It was then pointed out that it
might be useful to distinguish two types of respect. The distinction,
attributed to Stephen Darwall, is between recognition respect and appraisal
respect. Every person deserves recognition respect on the basis of her
humanity, whereas appraisal respect is earned based on actions; it is a form of
esteem. Nussbaum is referring to respect in the first sense. As she pointed out
in response to a question, we might not esteem the choices of a person who has
done terrible things, but that does not mean that it would be permissible to
torture him, or even imprison him indefinitely without a trial.
Williams believed that conscience is fragile and in need of
protection. He analogized religious persecution to both imprisonment and rape.
A person whose faculty for searching for meaning and striving is constrained is
imprisoned in a way; he is not free to follow his conscience and act in
accordance with it. In addition, to the extent that a person is forced to
affirm that which he does not believe, clearly a metaphorical penetration
without consent, his conscience will be weakened and his capacity to strive
will be damaged. Conscience itself must be protected, but a space around it
must be protected as well, ?so that it can venture into the world and conduct
its search.? This is the kind of respect that is necessary in order for
conscience, again something of great, possibly infinite value, to flourish.
It is true that Williams was both opposed to religious
establishments and in favor of religious accommodation for the reasons stated
above, but he had another compelling reason. He believed that there could be,
to use Rawlsian terminology, an overlapping consensus about morality that does
not depend on any particular religious view. Morality and religion are not the
same for Williams and for this reason he rejects the arguments of some of his
peers that people with ?incorrect? religious views cannot be good citizens or
public officials.
The final section of the reading focuses on the Establishment
Clause and how it can be seen as relying on principles of equal respect. This
is best shown by the fact that the Court does not require coercion as an
element of an Establishment Clause challenge. We are worried about
establishment because it both creates and reinforces a hierarchy of
citizenship. Nussbaum points out that this was recognized by Madison, even in the symbolic realm: ?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.?
Establishment of religion, whether it be in the form of
school prayer or religious displays in courthouses is harmful because it, as
Justice O?Conner wrote in her concurring opinion in Lynch v. Donnelly, ?sends a message to nonadherents 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.? There can not be equality before the law if the law is creating
distinctions of this kind, even unintentionally.
A significant portion of the workshop was devoted to
exploring how private actors should and should not be constrained by the
principles of equal respect. One point stressed by Nussbaum was that religious,
or anti-religious, statements made by a private actor, even a parent or a
private school teacher, are very different from the same statement made by a
government actor. When the state endorses a religious message it is implicitly asserting
that the content of that message is what real members of the community believe.
This additional assertion is absent when a private actor speaks. However, there
are still side-constraints on the expression of private actors. For Nussbaum,
they must not be permitted to interfere with the liberty of others. It is
perfectly acceptable for religious people to try to persuade non-believers or
adherents of other faiths to convert. However, the state has an obligation to
interfere if these attempts at persuasion cross the line into harassment.
The anti-endorsement principle also prompted an interesting
question by a faculty member: Would it be permissible for a public school to
promote some type of rotation of various paths of conscience? Every day a
different statement or prayer would be offered. (I say statement because if
atheists and agnostics are excluded then the establishment violation would be
fairly clear under the anti-endorsement construction.) This proposal does not
look like it endorses any one view over any other and possibly in theory it is
equality-promoting. However, Nussbaum pointed out that there are significant
problems of administrability. One such problem is what the school should do on
a special occasion such as graduation. To a lot of graduates, and their
families, an opening prayer, or statement, would be seen as an endorsement,
regardless of the general policy of neutral rotation. Furthermore, cases like Abington School District v. Schempp,
lead us to believe that school administrators might not provide the best
oversight for such a delicate project. However, Nussbaum also mentioned that
one virtue of private schools is that they are freer to experiment with
proposals of this sort because they are not state actors. Public schools, out
of fear of litigation, tend to shy away from teaching children about religion
even in a neutral or egalitarian manner.
The discussion was lively, with valuable input from both
students and faculty. I have not addressed every interesting point and question
in this post. Professor Nussbaum and I welcome a continuation of this
discussion in the comments section here.
Next time: 11/3 Joseph Raz
