Student Blogger - Martha Nussbaum: Liberty of Conscience

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

Comments

[LAK]

What are the bounds of Nussbaum's call for equal respect? If I believe that, given the means of production and human technological potential, God does not want me to work more than 4 hours a week, do I deserve a subsidy from others to accomodate my beliefs because they do not fit into the modern work world, much like Sherbet?
What criteria does she use to distinguish beliefs worthy of equal respect from beliefs that are not?

I'm not sure Sherbert would survive scrutiny from the original position under the first principle of justice, and certainly not if the source of one's beliefs is irrational, arbitrary religious dogma passed down from one's parents.

[Martha Nussbaum]

LAK asks an excellent question. According to the view I defend in my book, the right questions for judges to ask are those asked in Sherbert: (a) does the policy in question impose a substantial burden on an individual's free exercise of religion? (b) Can government cite a compelling interest in defending the policy in question? (c) is the policy in question narrowly tailored to protect that compelling interest in the least burdensome manner possible? (That standard exists only in some domains, since Employment Division v. Smith, but it is the one that I favor, along with most Americans, to judge from the popularity of the Religious Freedom Restoration Act.)
Before we even reach these questions, we agree not to protect any religious claim that violates the duly established rights of other citizens, and also any religious claim that contradicts the provisions of the U. S. Constitution. Thus a religious person cannot cite religious reasons to hold slaves, or to jeopardize someone else's health or life. (Jehovah's Witnesses have typically been permitted to refuse blood transfusions themselves, but not for their children.)
Now, having sidelined those claims, we reach the ones you are asking about. Typically, compelling state interests have been understood to include very strong administrative or economic interests: e.g. the interest in running a Social Security system, the interest in requiring all employers to pay S. S. tax for the employees. They have also included less tangible matters, such as the interest in eradicating racial discrimination (Bob Jones v. U. S.). If a person were unemployed because she refused to work more than four days per week, and brought forward bona fide religious texts supporting this practice, claiming unemployment compensation from the state, she would almost certainly lose, but on what grounds? Presumably most courts would not acknowledge that a substantial burden existed, because this person was not denied conditions of liberty equal to those granted others (as Mrs. Sherbert was, since she wanted only one day off like everyone else). Hard to say, since no such case has appeared, to my knowledge, but my own equality-based proposal would not look kindly on that person's claim to a special leisured status.

[LAK]

What is a bona fide religious text? (you seem to imply that this is a necessary though not sufficient condition for equal respect under the law by your example). Why is this and should this be important in terms of deserveing equal respect, as a matter of law and of ethics in general?

"Presumably most courts would not acknowledge that a substantial burden existed, because this person was not denied conditions of liberty equal to those granted others (as Mrs. Sherbert was, since she wanted only one day off like everyone else)"

You seem to suggest that a religious practice or belief is only worthy of equal respect under the law if it does not stray too far from the dominant religious beliefs that rule the day and happen to define the conditions of liberty granted to majority. That is, our culture happens to be organized around classical WASP religious practice and social norms - having sundays off - and your call for equal respect of religious belief, at least qua con law, seems to only go so far as to allow divergent beliefs that do not demand liberties or freedom of practice that go beyond the comparable liberties of the majority (What if my religious belief says I have to pray 2 hours a day monday through thursday from 2-4pm, thus resulting in the same number of hours off as those who get Sunday off? Is that asking for the same conditions of liberty?) There seems to be something entirely too pragmatic and incoherent about bounding the call for equal respect in this way.

However, I am far more interested in these questions as they relate to ethics in general, as opposed to state action. Do you think I have an ethical obligation to treat people with equal respect who keep their kids home from school to teach them the world is 6000 years old, that math is the devil, and that Adam and Eve rode dinosaurs simply because such beliefs do not impinge on my liberty? Even if they affect the culture and influence the zeitgeist of which I am a part? Even if they participate (and drag down) in shared economic activity and prosperity? Even if they believe I'm going to burn in eternal hellfire and believe God wants them to tell that to me to my face?

I guess my general question is whether you think I have an ethical obligation to treat religious people with equal respect at all if their beliefs are based on irrational authority and dogma, especially if I can point to social costs of their beliefs that don't necessarily impinge on my liberty directly, but nonetheless affect me insofar as I am the I that is We.

[Martha Nussbaum]

Under our tradition, showing that one has orthodox views within a particular denomination is certainly not necessary. The tradition has always encouraged and supported dissenters. A tradition does, however, give evidence of the bona fide nature of the religious claim. In the draft cases, people with non-traditional religious views had to articulate their dissident views at some length to win CO status, whereas members of traditional pacifist religions did not, and this is probably fair enough, since it is a bar to insincere and adventitious claimants. So too with the drug laws: Native Americans and members of other recognized sects with a tradition of ritual drug use are much more likely to be looked on favorably by courts than a person who has an utterly novel religion calling for drug use -- not because novelty is frowned upon per se, but because non-novelty is evidence that the claim is really a religious claim and not a made-up way of getting round the drug laws. That is the sort of point I was making about the employee: if she wanted to show that her claim was really a religious claim, she'd have to do some work to show that, producing a text, or a tradition, or doing a huge amount of explaining herself.

Even if she could do that, the likelihood is that the court would then find a "substantial burden" but also would find a "compelling state interest" on the other side, if she really wanted much more leisure time than other people got. If the conditions were roughly similar to those granted to the majority, then the question would be how high the level of administrative inconvenience is, and probably the person who wanted flexible work hours would have a strong claim.

As for home schooling: I think that our shared political principles entitle government to require a lot from all accredited schools, public, private, and home. Children ought to be taught our political principles, including the value of equal respect, and they ought to be taught the existence of other religions in the society and the duty to respect all citizens, whatever their religion or non-religion. I believe that government is also entitled to require reputable science education, and that this means that intelligent design cannot be required as part of science education, though it can be presented in a course on contemporary political issues. (I discuss this question in the final, "contemporary problems," chapter of my book, so LAK can see a fuller treatment there.)

As to people: whether their beliefs are true or false, silly or well-founded, I do believe that we have a political obligation to respect all as equal citizens. Turning from the political to the ethical, my own ethical/religious view also requires me to think of all human beings as equals, though of course I may think many are weak, foolish, silly, selfish, etc. (This is a distinction between the basic humanity that is equal and the use to which people put it, which may be very different.) I think one way to institutionalize the value of equal respect, while encouraging strong disagreement, is to teach philosophy! If we got used to examining premises and inferences rather than people, we would have made a lot of progress.