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.