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October 15, 2008


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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.


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.

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