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
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
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