Religiously Equal?

Liberty of Conscience: In Defense of America's Tradition of Religious Equality by Martha C. Nussbaum, Basic Books, 406 pages, $28.95

If democrats win the white house and Congress next November, one reason will be the party's success in neutralizing suspicions that it is hostile to religion, but that will not be the end of the matter. Whether religious Americans feel they have a place in a government shaped by liberals will depend on how a new administration and Congress respond to the issues that religious groups care about.

Not that all conflicts with religious groups can be -- or should be -- avoided. Eight years of Republican manipulation of religious sentiments and dubious alliances with religious leaders should not be followed by counter-pandering. The more tempting reflex, however, could be payback. And if the ensuing battles threaten legitimate religious concerns for freedom and equality, liberals will face a broader religious opposition than they did before.

The danger is easier to spot than to overcome. The First Amendment forbids the government from establishing any religion or constraining its free exercise, but those two prohibitions are notoriously in tension. What looks to one person like protection of free exercise often looks to someone else like establishment. Constitutional interpretation quickly falls victim to likes and dislikes, political partisanship, cultural ignorance, and sheer prejudice.

Alertness to that danger is one of Martha Nussbaum's major themes in Liberty of Conscience. One of the nation's leading political and moral philosophers, Nussbaum is ardent in her admiration of America's liberty and respect for different religious traditions. That admiration was reinforced by the research for her last book, The Clash Within (Harvard, 2007), which described the dangers posed by the Hindu right in India.

In practice, thinking about religious freedom in the United States has been dominated not by a principle but by an image, the wall of separation between church and state, a metaphor that we owe to Thomas Jefferson's 1802 letter to the Danbury Baptist Association. Although many people continue to frame church-state questions in terms of how "high" the wall of separation should be, dissatisfaction with this approach has grown for much the same reason as dissatisfaction with images of "free markets" in a world so complex and interrelated that government actions and responsibilities cannot be neatly compartmentalized.

"Nobody really believes in separation taken literally across the board," writes Nussbaum. "The modern state is ubiquitous in people's lives, and if we really tried to separate church from state all the way, this would lead to a situation of profound unfairness," depriving religion and its institutions of supports provided to everyone else. "The bare idea of separation," as she frequently puts it, is insufficient to distinguish between "how far and when separation is a good thing" or explain "why some interactions between government and religion are deeply objectionable, others less problematic."

Nussbaum is clearly writing in the wake of Philip Hamburger's magisterial Separation of Church and State (Harvard, 2002), which demonstrated how the concept, which was foreign to the thinking of most of the Founders, became belatedly incorporated into First Amendment discussion as a result of fear and prejudice, particularly anti-Catholic prejudice. "No group in our midst ...has suffered as much from fear and loathing as Roman Catholics," Nussbaum states. "The call for a ?separation of church and state' has not always been the decent equality-protective slogan that people who respect equality might like it to be. It actually gained currency as part of an anti-Catholic political movement."

Ultimately, separationist language led to the third of the Supreme Court's three-pronged requirement (the so-called Lemon test). Government actions must not only (1) serve a secular purpose and (2) be neutral in neither advancing nor inhibiting religion but also (3) avoid "excessive government entanglement with religion."

Entanglement, Nussbaum objects, "is a very vague standard, given the ubiquity of government in modern life." It pushes in the direction of a "relentless exclusion of religious institutions from all public benefits." Despite her egalitarian and inclusive politics, Nussbaum, to her credit, does not let the liberals and the left escape criticism, especially for a dogmatic attachment to separationist language.

In Nussbaum's view, government should be guided by the rule of an equal respect and protection of conscience that avoids any officially endorsed religious orthodoxy and maintains everyone's equal standing in the public realm. This framework, she believes, will justify separation of religion and state in some circumstances and legal accommodation of religion in others.

Nussbaum derives her position by marrying the ideas of Roger Williams to the philosophical framework of John Rawls. In her view, Williams was a more profound and daring proponent of religious freedom than John Locke; as the founder of Rhode Island, he defended liberty of conscience for "Jewes, Turkes, Papists, Protestants, Pagans" (the latter covering his Narragansett Indian neighbors). What Williams forged in the heat of religious fervor, Nussbaum tries to translate into coolly secular Rawlsian terms. Although the marriage has a shotgun quality, Nussbaum's approach, with its emphasis on equality, appears plausible and relatively workable.

Its most persuasive rival is Kent Greenawalt's argument, in his sane and comprehensive Religion and the Constitution (Princeton, 2006), against interpreting religious liberty on the basis of any "single overarching value" rather than "multiple values" relevant to particular contexts. Nussbaum and Greenawalt are not all that far apart. Both agree that honoring equality demands that different people be treated similarly under some circumstances, differently under others. In short, it depends.

Historically, alas, it has often depended less on any consistent application of constitutional principle than on subjective sympathies and animosities. "Fear of strangers, demonization of new or unpopular groups, panics about the future of the nation" or about sexuality and the family have often overridden the "fundamental constitutional commitment to... equal liberty in religious matters," Nussbaum writes. That is why her book's underlying storytelling is at least as important as its philosophical argument.

The plotline is one of defending minority outsiders and newcomers against majority ignorance and antagonism -- Catholics and Mormons along with Seventh-day Adventists and Jehovah's Witnesses in the past; atheists, non-theist Buddhists, Hindus, and Muslims in the present. There is a strong personal element in this storytelling. Nussbaum's professional role as a philosopher colors her characterization of conscience and religion. She is not much interested in religious communities and their need for institutional elbow room to pass on their traditions. Her heroes are individual seekers or adherents to minority faiths struggling against a dominant orthodoxy. Although their stories complement her legal analysis, the result often feels one-dimensional or somehow off-key.

She laments, for example, that "after World War II, left-wing intellectuals played a key role in denigrating Catholics as bad citizens," and criticizes the writer Paul Blanshard for purveying (first in The Nation and then in best-selling and influential books) classical anti-Catholic tropes in ignorance of broad-minded liberal Catholic thinkers such as Jacques Maritain. But wasn't the bigger problem with Blanshard his failure to acknowledge millions of ordinary Catholic Americans who, completely oblivious to papal dicta, had been demonstrating their loyalty to the U. S. Constitution, in government and on the battlefield?

An Episcopalian raised to be ashamed of associating with lesser religious breeds, Nussbaum converted to Reform Judaism. One wonders if what she describes as her "remorse and self-criticism about that earlier experience of shame" really equips her to champion religious minorities as much as she seems to assume.

Today, once you get beyond the obvious and important case of Muslims, just which religious minorities are most unpopular and in need of defense? Joseph P. Viteritti has made the provocative case in The Last Freedom: Religion from the Public School to the Public Square (Princeton, 2007) that seriously religious Americans constitute only a small minority and that the vast majority, despite their superficial religiosity, lead secular lives with essentially secular values. In Viteritti's view, it is "extreme secularism," accepted by this get-along, go-along majority, and not, as Nussbaum fears, an evangelical Christian orthodoxy, that threatens to curtail the religious freedom of those devout enough to be different.

Viteritti would include the fundamentalist parents in eastern Tennessee who in 1983 found hundreds of religiously objectionable messages in their school district's chosen readers. Religiously prescribed gender roles were supposedly threatened by a reference to boys cooking. Witchcraft, Satanism, and the equation of all religions infected Macbeth, The Wizard of Oz, and The Diary of Anne Frank. Unable to ban the readers, the parents wanted their children excused from the classes using them and allowed to do similar work with other texts. The school district ultimately refused and, when the children did not attend the reading classes, in effect expelled them.

Now here is a case to test liberal principles as well as most Americans' cultural sympathies. Even conservative Tennessee churchgoers thought these parents, though undoubtedly sincere, were on the fringe. The case, which soon became a media smackdown between national advocacy groups from the right and the left, generated four judicial opinions, one at the local level and three at the appellate, where the decision went against the parents.

Nussbaum endorses the outcome, sounding very much the philosopher who believes that state schooling should educate children out of such religious narrowness. Viteritti, not surprisingly, favors the local ruling that would have allowed the parents to opt out and conduct parallel reading classes under the state's home-schooling law. Greenawalt finds the appellate decision "reasonable" but would have preferred some greater recognition of the parents' religious rights. It is interesting that Nussbaum shows more sympathy for 19th-century Mormon polygamists and exotic sectarian snake handlers than these contemporary ultra-fundamentalist parents.

Indeed, she opens her book with a warning that religious freedom is under dire attack by conservative Christians, citing ominous phrases from John Ashcroft, George W. Bush, Lt. General William Boykin, and Alan Keyes (yes, Alan Keyes). Five pages later, she admits "there is little point in simply adding to the swelling chorus of alarm over ?the religious right'" and eventually she concludes that, despite Clarence Thomas' and Antonin Scalia's opinions, constitutional protection of religious freedom is fairly healthy. But the specter of an enforced evangelical Christian orthodoxy keeps popping up throughout her book.

For someone who attributes political overreactions to fears of strangers, psychological anxieties, and panics about the future, she never wonders whether she might be exhibiting some of her own. It would be a shame if that weakness obscures those parts of her history and argument that liberals and progressives should find challenging and useful.