On Nussbaum's Equality Theory of the Establishment Clause

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.

One objection to this idea, consistent with the equality theory, is that school principals and teachers might do a poor job of implementing any scheme of rotating prayers. For that matter, we might imagine that many parents would object to their child’s ever being exposed to official school prayers from religions other than their own, as well as to non-religious sentiments being given the same prominence as a prayer (though for members of the majority religion, this disorienting experience might be one of the virtues of the idea, making it easier for them to imagine the usual situation of those in the minority). But my point is simply that a system of rotating school prayers and statements could succeed at paying equal respect to all citizens, in which case a judge embracing Prof. Nussbaum’s equality-based interpretation of the Establishment Clause should find it impossible to strike it down.

My second example is more radical: if there is a school district with sufficient religious homogeneity, there could easily exist a single prayer consistent with the religious views of everyone in the community. In such a place, wouldn’t the official use of that prayer in public schools – on a daily basis – be consistent with the local government (which is the only government in control of the school and the prayer) showing equal respect to all of its citizens? I don’t mean to propose a community where everyone’s views are exactly the same, which probably does not exist, but one with enough homogeneity to allow for unanimous agreement on a prayer. It is not obvious that there is an equality argument for banning prayer from public schools when those prayers are acceptable to everyone in the community. Nor do I see why people outside the community who do not hear or have their children hear the prayer (or even pay taxes supporting the schools) suffer any disrespect from merely knowing that a community somewhere exists with an official public school prayer (especially if it turns out that, taken as a whole, the communities that do this represent many different religions).

Such a community would, I believe, have to cease this prayer practice immediately if a new person entered the community who did not share the local religious view. And here is where I see a potential equality attack on the practice: that those who do not share the community’s religious homogeneity may now be unwilling to move to the community. They may be especially unwelcome if their entry spells the end of the prayer regime. Given the importance of freedom of movement, this point may explain why equality is inconsistent with allowing public school prayer even if it is acceptable to all existing members of the community. But it strikes me that this justification is highly contingent: in some small communities, this level of homogeneity has existed for decades. For some of these communities, the population is shrinking because there are no new entrants to make up for the departure of new generations. In these cases, the possibility of a new entrant with different religious views seems pretty remote.

Having written this post, I should perhaps now reveal that, contrary to what some readers might guess, I am not particularly comfortable with the implications I have drawn from Prof. Nussbaum’s theory. If I am correct about them, it makes me wonder if there is or should be something more going on in the Establishment Clause than a concern for equality.

Comments

[Bryan Hart]

The freedom of mobility in this country may be such a strong background principle that it defines the relevant community for the First Amendment inquiry; in other words, the relevant community when evaluating a school's policy is not the school district but the entire country because anybody could move to that school district. If so, the equality principle is saved from McAdams's second example. The chance that the entire country is homogeneous is so remote it can be ignored, and if the country was homogeneous, the First Amendment would be superfluous anyway.