In her work presented at Monday’s Law & Philosophy Workshop, Martha Nussbaum interestingly ties the religion clauses to a concern for equality – to the need for the state to treat its citizens with equal respect. For the Establishment Clause, this means that separation of church and state is not an end, but only one possible means of achieving the end of equality. I find this approach intriguing, but I think the doctrinal implications are even bolder and more unconventional than Prof. Nussbaum acknowledges. Though she observes that equality requires less separation than does some Supreme Court precedent, she generally finds the equality rationale to support the existing doctrinal requirements for the separation of church and state. I am not so sure. Consider two examples.
First, if a public school principal rotates through a variety of public prayers and secular statements (the latter including but not limited to statements of agnostic skepticism or atheistic certitude), should we not conclude that this rotation pays equal respect to all citizens of the school? (Alex Kolod notes in her blog entry that I asked this question in the Law & Philosophy workshop). Think of this proposal as like the old “fairness doctrine”: public schools are permitted to have official prayers, but if they do, they must give “equal time” (or possibly proportionate time) to each religious tradition as well as to those traditions rejecting religious belief. It also partly corresponds to the rotation of prayers in the United States Congress (though I believe they exclude agnostic or atheistic statements). The counter-example of the high school graduation prayer shows that the rotation idea might not work for every occasion, but it would still be a marked departure from doctrine if the concern for equality led to permitting a centralized daily prayer (say, over the intercom) in public school classes.