The National Catholic Review

As the United States moves into the 21st century, it is clear that the American population now represents an ethnic and religious diversity far beyond anything the framers of the Constitution ever could have imagined. Given this reality, what is the best way to define the extent of the constitutional right to religious freedom and the accompanying prohibition against religious establishment, while maintaining respect for the nation’s growing diversity of religious belief and unbelief?

In her new book, Liberty of Conscience, the legal scholar Martha Nussbaum seeks to answer this question by mounting a defense of the American tradition of religious equality. She argues this tradition is threatened, on the one hand, by attempts on the religious right to “push to institutionalize Christian evangelical fundamentalism and its near relatives as our state religion,” suggesting that those who do not share the religious values they champion are “less than fully American and less than fully equal.” On the other hand, the tradition also is being undermined by those on the left who are motivated by an “arrogant secularism,” which demonstrates a contempt for religious faith and religious believers by insisting on a vision of the “neutral” public square that essentially favors non-religion over religion.

In Nussbaum’s view, the appropriate way to understand the religion clauses of the First Amendment is to see them as underlying a tradition rooted in principles of liberty and equality. Citizens must be provided a space in which they are free to act or refrain from acting based on their most deeply held beliefs. Indeed, respecting freedom of conscience is integral to demonstrating real respect for others as human beings. With admirable erudition, drawing from a deep understanding of both the historical context and the philosophical provenance of the framers of the Constitution, Nussbaum offers a passionate and convincing argument for an understanding of the American traditions of religious freedom and non-establishment that, if applied, would allow our nation to remain committed to equality and fairness despite the growing presence of Muslims, Hindus, Buddhists, atheists and an ever-expanding array of believers in non-theistic and polytheistic faith traditions. For Nussbaum, a respect for equality that also respects freedom “strikes the right balance between the need for neutral institutions and the needs of people of faith. How terrible it would be, then, if that admirable American tradition were undermined in a time of widespread uncertainty and fear.”

Given the current attention being directed at “Islamofascism” and illegal immigration, fear is, unfortunately, a real threat. Although Nussbaum has no illusions about our nation’s failures to honor its commitment to religious freedom and citizen equality at times in the past, she offers the powerful example of Roger Williams to demonstrate that the roots of the American tradition of respect for conscience predate the nation’s founding—and any discussions of religious freedom amongst the framers—by well over a century. Williams provides a brilliant example of an early American advocate of the protection of the individual conscience. His expulsion from the Massachusetts Bay Colony was emblematic of a struggle that still haunts America today and is the source of much of the tension around the role of religion in American public life:

Americans have a recurring tendency to seek the comfort of orthodoxy in times of stress. Minorities often suffer from these anxious impositions of order. [The] seductive metaphor of taint or stain in our midst that must be removed if we are to resist corruption is still with us. Continual vigilance is required lest anxiety triumph over the spirit of love and peace. That is why the Puritan experience, and Roger Williams’s response, are so important to ponder.

Rhode Island was America’s first successful model of a political community that offered true liberty of religious belief, and it is this history that Nussbaum hopes to reclaim, not only to challenge modern attempts at an imposition of certain forms of religious orthodoxy on the public square, but also as a rejoinder to those who would seek to stop it by strengthening the “wall” of separation between church and state:

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. The idea of overlapping consensus, or, to put it Williams’s way, the idea of a moral and natural goodness that we can share while differing on ultimate religious ends, is an idea that helps us think about our common life together much better than the unclear and oftentimes misleading idea of separation.

Spurred by Williams’s vision, Nussbaum explores the increasingly convoluted decision-making by the Supreme Court in the area of religious freedom and religious establishment. Respectfully but firmly Nussbaum rejects theories of Constitutional interpretation that rely on discerning some unitary notion of the “intent of the framers.” Instead, she demonstrates how a focus on respect for individual equality as a logical byproduct of a respect for natural rights offers a unifying principle for understanding which activities the religion clauses ought to allow or forbid. From accommodation of the rights of religious minorities like, until very recently, Roman Catholics, to more current debates around school prayer, public religious displays, school vouchers and same-sex marriage, Nussbaum stresses the centrality of the equal dignity of human persons. This means that citizens must be treated as equals by laws and institutions, which may, for example, make certain public religious displays that seem innocuous or inoffensive to the majority nonetheless inappropriate because of the message of inequality they send to those with different beliefs. At the same time, equal respect may at times require forms of accommodation.

Equality properly understood does not always mean equal treatment. To have a meaningful right to act based on the deeply held dictates of one’s faith may sometimes require a recognition of difference by the state. Our constitutional principles need to be viewed with enough flexibility to allow diverse opinions regarding ultimate questions to flourish despite ongoing efforts by some to stoke intolerance and bigotry in the face of change. As Nussbaum notes, “equal liberty of conscience is a hard thing to create, and a harder one to keep.” It is, nevertheless, well worth the effort, if Americans hope to continue the remarkable legacy of Roger Williams as a means for creating a democratic nation fiercely committed in its principles to the equal dignity of all its people.

Vincent Rougeau is an associate professor at the University of Notre Dame Law School, Notre Dame, Ind.

Comments

Sues Krebs | 10/13/2008 - 1:35am
"Equal liberty of conscious is (definitely) a harder thing to create" because of intolerance and bigotry everywhere. Not just in this country, my dear. Your absolutely correct about that.
BRUCE SNOWDEN | 5/18/2008 - 8:24am
I don't possess the necessary competence to properly challenge Martha Nussbaum's great legal scholarship in her work, "Liberty Of Conscience" (America Magazine review 5/14/08 by Vincent Rougeau.) Maybe what I want to say will validate the axiom, "Fools rush in where angels fear to thread" yet I ask forebearance as I venture the following. As Ms. Mussbaum says, the First Amendment does underlie principles of equality and liberty and it has always been, that, the religious right pushes to "institutionalize Christianity" (on which this Nation was founded) and that the religious left is always motivated by "arrogant secularism" which obviously tends to nullify the Founders intent. But isn't this the way it has always been and will ever be, as an irreversible built-in tension must exist between freedom and equality, because by its very nature freedom bridles equality, since obviously, one is not free to always do what one wants to do. Freedom is not an equal opportunity provider! You can't have two opposites that agree. Freedom is concerned with the truth - "You shall know the truth and the truth shall set you free." whereas, equality is concerned with whatever satisfied, or appeases. Such, I think, is the fruit of an unbridled Democracy, not foreseen by the majority of our Founders, which in time becomes like a run-away horse thriving on the grass of an "anything goes" mentality. This spills over not only into the quagmire of the liberty of religious conscience, but also onto the "pebble-in the shoe" paths of sociological, philosophical thought and other disciplines, which soon become the playground for an "anything goes" mentality. Look aroung our Country and see what is happening to our most treasured institutions , like marriage and family and much more! John Adams was right when at the Constitutional Convention he opted for a Parliamentary system of government, over a Democracy, saying, history attests that Democracy is suicidal and sooner, or later, self-destructs! What is the answer? TRUTH, which like a Bee produces not only the sweetness of honey, but also a painful sting! We must be in pursuit not so much of freedom and liberty but of truth, for without truth, the whole truth and nothing but the truth, there can be no true liberty or freedom! Then true liberty and freedon can flourish. Simplistic? Maybe so, but as St. Francis of Assisi might say, this is the way "Brother Ass" sees it!
DE Mosman | 5/14/2008 - 9:22pm
So "Citizens must be provided a space in which they are free to act or refrain from acting based on their most deeply held beliefs. Indeed, respecting freedom of conscience is integral to demonstrating real respect for others as human beings." If the standard of religious freedom and respect for freedom of conscience requires "space in which citizens are free to act on their most deeply held beliefs" -- then it is obvious that Martha C. Nussbaum and Vincent Rougeau have no quarrel with the Hitler(s), Stalin(s), and Mao(s) of the world. They had the space and each acted, it must be assumed, as Nussbaum and Rougeau postulate in accordance with their own clear conscience. Perhaps Nussbaum and Rougeau can convince the survivors of the Buchanwald(s), the gulags, and purges of the Great Leap(s) Forward. It will be interesting to hear Martha when Vincent, acting within his conscience and most deeply held beliefs, drops a burka over her head. DE Mosman
E. Patrick Mosman | 5/11/2008 - 9:55am
It appears that the author, Ms.Nussbaum is championing the ideas of 'moral relativism' and 'subjective conscience' in the conclusion“equal liberty of conscience is a hard thing to create, and a harder one to keep.” Both Popes John Paul II and Pope Benedict XVI have spoken and written on Conscience, Reason and Truth on more than one occasion. Since Vatican II the liberal wing of the Catholic Church has promulgated the superiority of one's own, or the subjective conscience, and in February 1991 then Cardinal Ratzinger delivered the Church's response in his presentation 'Conscience and Truth" delivered at the '10th Workshop for Bishops; in Dallas Texas. A brief summary of his conclusion is found in the following extract, "It is of course undisputed that one must follow a certain conscience or at least not act against it. But whether the judgment of conscience or what one takes to be such, is always right, indeed whether it is infallible, is another question. For if this were the case, it would mean that there is no truth - at least not in moral and religious matters, which is to say, in the areas which constitute the very pillars of our existence.For judgments of conscience can contradict each other. Thus there could be at best the subject's own truth, which would be reduced to the subject's sincerity." Cardinal Ratzinger's address should be required reading as he carefully constructs how following one's own subjective conscience can lead to self-justification for horrific acts. "Soon after John Paul II's passing, President George W. Bush spoke approvingly of the Pope reminding “us of our obligation to build a culture of life, in which the strong protect the weak.” But few have read the papal encyclical, Evangelium Vitae (The Gospel of Life,1995), in which the “culture of life” is fully explained and defended. It is a remarkable document in which John Paul carefully offers a case for the sanctity of human life, the wrongness of certain practices including abortion and euthanasia, and the obligation of Christian citizens and public officials in advancing a culture of life. What will surprise many is John Paul’s impressive grasp and use of Scripture and how he weaves together an extended argument whose premises include passages and principles from the Word of God. But what John Paul teaches and what will appear novel to some of many, is the careful manner in which he shows that the moral principles found in Scripture are consistent with a reflective understanding of the order and nature of things that one can know apart from the biblical text. For example, John Paul points out that when proponents of liberal democracy embrace moral relativism (as they often do), they are in fact offering a self-defeating point of view that, ironically, is philosophically incapable of sustaining a political regime that claims that the purpose of its laws is to protect human equality and dignity." Writes John Paul: "It is true that history has known cases where crimes have been committed in the name of "truth". But equally grave crimes and radical denials of freedom have also been committed and are still being committed in the name of "ethical relativism". When a parliamentary or social majority decrees that it is legal, at least under certain conditions, to kill unborn human life, is it not really making a "tyrannical" decision with regard to the weakest and most defenceless of human beings? Everyone's conscience rightly rejects those crimes against humanity of which our century has had such sad experience. But would these crimes cease to be crimes if, instead of being committed by unscrupulous tyrants, they were legitimated by popular consensus?" According to John Paul, a democratic regime, whose purpose is to do justice by treating all human beings under its authority with equal regard, cannot do so without embracing certain fundamental moral truths as foundational to its institutions and laws: “the dignity of every<