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Journal of Human Development Vol. 8, No.

3, November 2007

Liberty of Conscience: The Attack on Equal Respect1

MARTHA C. NUSSBAUM Martha C. Nussbaum is Ernst Freund Distinguished Service Professor of Law and Ethics, University of Chicago, IL, USA Abstract All modern nations face problems of religious toleration and respect. Examining the US constitutional tradition of religious free exercise and non-establishment, I argue that the core value in this tradition is that of equal respect for conscience, a value that militates against all governmentally-created hierarchies or in-groups. I argue that this tradition is on the whole a helpful guide in thinking about such issues more generally. On the free exercise side, I argue for a doctrine of accommodation that gives dispensations from generally applicable laws on grounds of conscience. On the non-establishment side, I look at issues of public displays, school prayer, and public funding, arguing that the key question is whether the policy in question makes a statement of endorsement or disendorsement, creating preferred and dispreferred classes of citizens. I conclude by examining the major threats to the tradition of equal respect. Key words: Religion, Respect, Equality, Free exercise, Establishment, Constitution

Your Selvs praetend libertie of Conscience, but alas, it is but selfe (the great God Selfe) only to Your Selves. (Roger Williams, letter to the Governors of Massachusetts and Connecticut 1670, in Williams, 1988, vol. II)

Equal liberty of conscience

Every year, at Thanksgiving, thousands of small American children dress up like Pilgrims. Grave in tall hats and buckled shoes, or starched bonnets and aprons, they proudly act out the story of that courageous band of settlers who fled religious persecution in Europe, braving a perilous ocean voyage and the harsh conditions of a Massachusetts winter all in order to be able to worship God freely in their own way. Those who survived feasted with the native inhabitants and gave thanks to God.
ISSN 1464-9888 print/ISSN 1469-9516 online/07/030337-21 # 2007 United Nations Development Programme DOI: 10.1080/14649880701462023

M. C. Nussbaum Americans cherish and celebrate this story, but too rarely reflect on its real meaning: that religious liberty is very important to people, and that it is often very unequally distributed. The dominant majority in England did not have to run risks to worship God according to their consciences. They established an orthodoxy, an official church, which favored them and subordinated others. In the England from which the Pilgrims fled, people were not equal citizens, because their rights were not equally respected by the government under which they lived. The Pilgrims were not expelled from England, as the Jews had earlier been expelled, but they were living in a condition of subordination. Something very precious had been withheld from them, and it was to recover that space of both liberty and equality that they crossed the ocean in three small vessels. The lesson of the first Thanksgiving is easy to forget. Indeed, the early settlers themselves soon forgot it, establishing their own repressive orthodoxy, from which others fled in turn. People like exclusive clubs and orthodoxies that rank them above others. My mothers ancestors came over on the Mayflower, and some of my relatives were obsessed with triumphal genealogizing, as they marshaled the evidence that they belonged in the exclusive and socially prominent Mayflower Society, while others did not. The Pilgrims quest for freedom, centuries later, had become elite Americans quest for superiority. Nor was religious toleration in a healthy state among the Pilgrims descendants, as the exclusion of Jews and Roman Catholics from local private schools, country clubs, law firms, and prestigious social events indicated. When I later married a Jew and converted to Judaism, the Pilgrims descendants did not applaud my choice to live according to my own conscience. People love in-groups that give their members special rights. Equality, and respect for equality, are difficult for human beings to sustain. Particularly in the area of religion, which seems so vital to the salvation of individuals and the health of the nation, it is very tempting to think that orthodoxy is a good thing and that those who do not accept it are dangerous subversives. When people are afraid or insecure, when some unusual economic or political threat confronts their nation, respect for equality is even harder to sustain, and the comfort of an orthodoxy becomes even more alluring. It was in 1954 during the panic over the Cold War and the nuclear arms race that Americans added the words under God to the Pledge of Allegiance to the flag, which small schoolchildren recite every morning in schools in many states: not one nation indivisible, with liberty and justice for all, but one nation, under God, indivisible, with liberty and justice for all. The aim was to distinguish god-fearing America from godless communism, but the effect was to denigrate atheists, agnostics, polytheists, members of non-theistic religions such as Buddhism and Confucianism, and all those more standard theists who do not like to think of God as playing favorites among the nations, taking America under his wing no matter what America has been doing. 338

Liberty of Conscience All modern democracies are currently in a state of fear, and growing religious diversity is one of the things that most keenly inspires fear. Just as in the nineteenth century America saw a panic about Catholic immigration, and otherwise reasonable people hastened to demonize the entirety of the Roman Catholic faith, arguing that Catholicism and Catholics were incompatible with democracy, so too today we hear, in North America and especially in Europe, the same sweeping and unsubtle arguments about Islam and Muslims. Just as Catholics could be well treated in the United States of the nineteenth and early twentieth centuries only if they pretended to be like everyone else, reciting Protestant prayers in school and forgoing any public ceremonies that drew attention to religious particularity, so too, today, we hear the same strident demand that Muslims should assimilate, which means stopping any practice that draws attention to their difference from others. (Of course the same demand was made of the Jews in Europe in the eighteenth century, and it was as antiSemitic as the more violent anti-Semitism of the nineteenth century, albeit more polite in tone.) Fear of the different has been leading, as it so often has, to a coercive homogeneity, and it is the homogeneity of fear, as we cling for dear life to the familiar, thinking that there alone resides our hope of safety in a perilous world. In this paper I shall argue that the only decent antidote to that fear, and to the unjust behavior that it often inspires, lies in renewed commitment to a long tradition of equal respect for conscience that played a formative role in both European and American institutions, but that is frequently honored more in the breach than in the observance renewed commitment to that tradition and to the governmental and legal policies that it entails. What are those policies? I shall argue that equal liberty of conscience requires giving citizens ample space to pursue their conscientious commitments, even when this involves giving them exemptions from some laws that apply to all citizens. Only what is called in the law a compelling state interest should ever be able to justify any diminution of that space. And I shall also argue, second, that liberty of conscience is incompatible with any type of religious establishment, even one that is so gentle and benign as to escape most peoples notice. Liberty of conscience is not equal if government announces a religious orthodoxy, saying that this, and not that, is the religious view that defines us as a nation. Even if such an orthodoxy is not coercively imposed, it is a statement that creates an in-group and an out-group. It says that we do not all enter the public square on equal conditions; that one religion is the nations true religion and others are not. In short, respecting liberty of conscience equally entails that the state may not create a two-tiered system of citizenship by establishing a religious orthodoxy that gives rights to others on unequal terms. As US Supreme Court Justice Jackson put it in a famous opinion holding that Jehovahs Witnesses may not be compelled to recite the Pledge of Allegiance in 339

M. C. Nussbaum school (which their religion forbids, as a form of idolatry): If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us (Board of Education v. Barnette, 1943).2 Let us look at two cases that illustrate the issues vividly. Adell Sherbert worked in a textile factory in South Carolina in the 1950s. All the employers in her town had similar policies for working hours. After Mrs Sherbert had been a good employee for many years, the policy changed, during a time of economic stress and competition. Instead of working fiveday weeks, employees were now expected to work six-day weeks. Saturday was the added day, and that was true of all the employers in the area. Mrs Sherbert, however, was a Seventh-Day Adventist, for whom it was religiously forbidden to work on Saturday. She tried to find similar work elsewhere in the region, but all employers required Saturday work. Not surprisingly, there was none who chose to close on Saturday and to remain open on Sunday, because most workers and managers were Christian. Mrs Sherbert resigned and sought unemployment compensation. She was denied by the state of South Carolina on the grounds that she had refused suitable work. She went to court, arguing that the state had impermissibly impeded her free exercise of religion. In a famous judgment in 1963, the US Supreme Court agreed (Sherbert v. Verner, 1963). They held that benefits could not be made conditional on a violation of a persons religious scruples: this was just like fining someone for Saturday worship. In other words, the denial of benefits was a violation of Mrs Sherberts equal freedom, as a citizen, to worship in her own way. Free exercise does not mean simply that nobody can come and put Mrs Sherbert in jail for her non-standard religious practices. It means, as well, that the conditions of liberty must be the same for all. The Court held that no person may suffer a substantial burden to their religious liberty without a compelling state interest which clearly did not exist in this case. Workplace arrangements are always made for the benefit of the majority. The holidays observed, the work-days chosen, all are tailored to suit the local majority; in this case Christian. There is nothing inherently wrong with this so long as care is taken to prevent this convenient arrangement from turning into a fundamental inequality in freedom and respect. The Free Exercise Clause, the Court held, guarantees that equal freedom. The Allegheny County Courthouse stands on public property in downtown Pittsburgh. In the late 1980s, the County set up two holiday season displays. The first, inside the Courthouse, consisted of a cre `che (Nativity scene), donated by a local Roman Catholic organization, and labeled to that effect. Placed on the Grand Staircase of the Courthouse, 340

Liberty of Conscience with no other displays around it, the Nativity scene bore a sign carried by an angel above the manger saying Gloria in Excelsis Deo (Glory to God in the highest). The second display was outside, on the Courthouse lawn. It consisted of a Hanukkah menorah 18 feet tall, standing next to the citys 45-foot decorated Christmas tree. At the foot of the tree was a message from the mayor saying that the display was a salute to liberty. (In fact, the menorah is a symbol of liberty, since the holiday of Hanukkah commemorates the Maccabees courageous rebellion against political oppression. It is difficult to say whether a Christmas tree represents liberty, but it is such an all-purpose symbol that the mayor can probably declare this without implausibility.) Local residents took both displays to court, charging that they violated the Establishment Clause. The Court obviously considered this a very difficult case. Ultimately a split Court judged that the first display violated the Establishment Clause and the second did not (County of Allegheny v. ACLU, 1989). The crucial question they asked was whether each display communicated the message that the county was giving its endorsement to a particular set of religious beliefs and practices, thus threatening equality. The first display seemed to the majority to communicate such an endorsement: the religious Christian display stood alone, in a position of special prominence and honor. The second display was different: the fact that more than one religion was honored, and that the theme connecting the tree with the menorah was that of liberty, a theme that could include all citizens, whatever their religion or non-religion, meant to at least the Courts center that the people of Pittsburgh would not be likely to perceive the combined display of the tree, the sign, and the menorah as an endorsement or disapproval of their individual religious choices. We can grant that this is a difficult case to decide, and we can even differ about whether it was correctly decided, while yet agreeing about the immense importance of the principle involved. Some religious symbols, set up by government, threaten the equal standing of citizens in the public realm. They attach the imprimatur of orthodoxy to Christian observance, while demoting the beliefs and practices of others. These cases show us that making law in a pluralistic democracy is a delicate matter, requiring great sensitivity to a variety of contextual and cultural factors. They also show us, however, that all is not well just because no overt violence occurs between members of one religion and those of another. The United States has had its share of outright violence, particularly against members of unpopular new religions Catholics, Mormons, Jehovahs Witnesses. What these recent cases show, however, is that there is also violence in the subtle assault on equal dignity that consists in being told that you are not a fully equal citizen because of your commitment to your religion. Europe and the United States plume themselves on their respect for pluralism and their civilized behavior toward religious minorities: and yet, problems like this occur all the time. 341

M. C. Nussbaum Until we really counter these more subtle threats and commit ourselves to developing democracies that are really places of equal respect, especially equal respect for new immigrants whom we do not like and whom we fear, we do not have the right to pride ourselves just because there is not very much physical violence. Roger Williams, the great seventeenth-century thinker about religious pluralism, who founded the first colony in which genuine religious equality obtained, called this subtle violence to conscience soul rape (Williams, 1644, p. 219). We need to think hard about how we can develop democracies that are not places of soul rape. This paper will focus on the United States and its legal tradition, because I know that tradition best and I think it is always best, if one is going to criticize, to begin at home. I believe that the nations of Europe have a lot of the same issues to contend with, and in a way they are at a disadvantage, because they have been coping with religious difference for a much shorter time and have had less time to develop the political and legal resources necessary to deal with it well. Of course difference was really present in Europe all along, since the Jews were always around, as were many other minorities, but the Christian majority was so secure that it was possible to avoid lengthy confrontation with the issue, until recently. From at least 1640 on, by contrast, the American colonists knew that they had to learn to live together on terms of mutual respect if they were going to survive at all, and this was quite helpful in getting people off their high horse toward genuine cooperation. I shall not speak at all, today, of the legal and political traditions of nations outside the United States and Europe, not because I do not think that there is a great deal to be learned from them as I have often emphasized in the case of India but, rather, because I think that there is an arrogance abroad in the nations of Europe and North America, as we impugn the religious fanaticism of others while neglecting the very large planks in our own eyes, in the form of a complacent love of homogeneity that is scared of real difference.

The seventeenth-century consensus: Williams and Madison

The tradition I want to examine starts from the idea that each human being has a precious internal faculty (which we might call an internal capability!) for searching for lifes ethical basis and its ultimate meaning. This faculty, the founders of this tradition call conscience. (The tradition is much influenced by ancient Greek and Roman Stoicism, and conscience is a close relative of the Stoics idea of a power of moral choice.) Conscience is in each and every human being, and is present equally in high and low, slave and free, Protestant and Catholic. This conscience is deserving of profound respect and reverence. Even when it is going wrong, it is a major source of our dignity in the world, and it ought to be respected by individuals, and also by laws and institutions. What does it mean to give equal respect to conscience? Here the ancient Stoic thinkers become quietistic: they think that our moral 342

Liberty of Conscience capabilities are so invulnerable, so rock-hard, that they cannot be damaged by anything that the world does, so it really does not matter what laws and institutions do to them. A slave is always free inside, a cruel tyrant cannot destroy a persons true moral freedom. The seventeenth-century American thinkers who appropriated Stoic ideas in a Protestant context thought otherwise: the capability in question is a fragile thing. What the world does to it can stop it from being active, and it can even deform or damage it. Roger Williams, whose great work The Bloudy Tenent of Persecution, published in 1644, is a primary foundation of the ideas I am defending here, compared the first form of damage with imprisonment and the second form with rape. And it is soul rape, he went on, whenever some people set up their own religion as the orthodox one and deny equal liberty to the consciences of others (Williams, 1644, p. 219). Williams argues that conscience needs space to unfold itself, to pursue its own way. (I would say that he is basically making my distinction between internal and combined capabilities: people may have the internal capability of conscience and yet not fully have the combined capability, because of political and legal restrictions.) To respect human beings is therefore to protect that sort of space, equally and impartially, for each and every one of them. He expresses indignation that someone that speakes so tenderly for his owne, hath yet so little respect, mercie, or pitie to the like consciencious perswasions of other Men Are all the Thousands of millions of millions of Consciences, at home and abroad, fuell onely for a prison, for a whip, for a stake, for a Gallowes? Are no Consciences to breath the Aire, but such as suit and sample his? (Williams, 1988, vol. I, p. 338). Williams has a keen nose for special pleading and unfairness, and he finds it wherever unequal restrictions on liberty of conscience are to be found. In my epigraph, he writes that the governors of two colonies that had legally established official religions say that they are in favor of liberty of conscience but in actuality they want it only for themselves. Rhode Island, the colony he founded, proclaimed complete and equal liberty for all the people who were unequal elsewhere: Baptists, Quakers, Catholics, Jews, native Americans (whom Williams particularly befriended and whose land claims he zealously defended), even Muslims, who were not actually present in Rhode Island so far as I can discover, but whom he included in his theory, and even, most surprisingly, atheists, who were not defended by other seventeenth-century philosophers writing on this topic. In a way that strikingly anticipates the arguments of John Rawls in the twentieth century (Rawls, 1996), Williams argues that protecting liberty of conscience equally for all citizens does not mean that public institutions must be devoid of moral content. We can, he argues, agree about and overlap in a shared moral space, while disagreeing about the ultimate religious truths to which moral truths are, for many people, very closely connected (Williams, 1644, pp. 398399). Political institutions have a moral nature, but they express their moral ideas in a way that is separate from a theological or religious grounding what Rawls calls a 343

M. C. Nussbaum freestanding way (Rawls, 1986, pp. 1213). They thus express, in their very abstemiousness, an ideal of equal respect for citizens. It would be a long matter to trace the influence of these ideas on the framers of the US Constitution. Suffice it to say that, directly and/or indirectly, these ideas gradually prevailed in the colonies, and the main architect of our Bill of Rights, James Madison, had views very similar to those of Williams. Madison was a particularly keen opponent of all forms of religious establishment, on equality grounds, as we shall shortly see. After a lot of wrangling, the text that emerged stated that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof (US Constitution, amendment 1). Although at first the provision was binding only on the federal government, amendments added after the Civil War made it binding on state and local government as well.

The modern constitutional consensus: free exercise accommodation

What does it take to defend religious liberty in a truly even-handed way? One philosophical tradition, beginning with Locke (who wrote 50 years after Williams), holds that it takes two things only: first, laws that do not penalize religious belief and practice; and, second, laws that are fair, setting up the same conditions for all citizens in matters that touch on their religion (Locke, 1689, pp. 40, 42, 53). For example, says Locke, if it is legal to speak Latin in a school, it ought to be legal to speak Latin in a church: a law that says otherwise is a covert form of unfairness to Roman Catholics. If it is permitted to immerse oneself in water for the sake of health or recreation, then it ought to be permitted to immerse oneself in water for the sake of baptism. Laws that say otherwise are unfair to Baptists. But that is all that fairness to minorities requires: to give them special dispensations of any kind is unnecessary and wrong. If they do not want to obey some law on account of religious objections, they will just have to pay the legal penalty (Locke, 1689, p. 48). Lockes position has modern defenders on the US Supreme Court, in particular Justice Antonin Scalia, who is prepared to strike down laws that expressly discriminate against minorities, but who opposes any special accommodations of their practices. For example, he favored striking down an ordinance in the city of Hialeah, Florida that made animal sacrifice illegal, on the grounds that it was clear that the aim of the ordinance was to drive Santeria worshippers out of the city (Church of the Lukumi Babalu Aye v. City of Hialeah, 1993). What made the ordinance problematic for the Lockean was that the food industry was permitted to kill animals, often in far more painful ways, and it was only the religious practices of the Santeria worshippers that were made illegal. Justice Samuel Alito went one step further when he was a judge on the Federal Appeals Court. Muslim police officers in the state of New Jersey were 344

Liberty of Conscience denied the right to wear beards, which this particular group of Muslims believed religiously required. Alito pointed out that the police regulation allowed non-religious people with skin allergies to keep their beards, so if that was allowed, he argued, then the Muslim officers would have to be permitted to keep their beards. This went one step further than Scalia, because there was no evidence that the police policy was crafted in order to penalize Muslims or to drive them out of the police force; it just had the incidental effect of burdening them unfairly (Fraternal Order of Police v. City of Newark, 1999). For a long American tradition that begins in the seventeenth century, the LockeScalia position is insufficient, and even Alitos modest extension of it is not quite enough. This tradition reasons that laws, in a democracy, are always made by the majority. They express majority ideas of convenience, and they will incorporate the religious preferences of the majority. In Christian nations, for example, Sunday will be the day off from work, because the majority religion requires rest on a Sunday. Such laws, even if they do not involve any hostility to minorities, are apt to be heedless, not noticing the special burdens that minorities have to face. Already before the war of independence, the colonists had become used to such problems. Quakers refused to take off their hats in court, although the law required this. Jews refused to give testimony on a Saturday when served with a subpoena. Both Quakers and Mennonites refused required military service. The position that emerged was one that favored special exemptions in such cases. In a famous letter to the Quakers written shortly after Independence, George Washington, the first US President, said: I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit (McConnell et al., 2006, p. 42). He did not require them to perform military service, and he also did not ask them, as Locke would have, to pay the legal penalty. Similarly, Jews were not required to appear in court on a Saturday, and they were not fined either. Shortly after independence, in a memorable early court decision, a Roman Catholic priest was allowed to refuse to answer questions posed to him in a criminal case, when he protested that his information about the identity of the criminal came to him in the confessional. The judge, a Protestant, reasoned that to require a priest to divulge this information, or to penalize him for not doing so, would effectively abolish the sacrament of the confessional, and thus would impose a very severe burden on all Catholics (People v. Philips, 1813). (The Roger Williams idea of soul rape runs like a powerful current through all these opinions.) It was on account of this tradition that Adell Sherbert got her unemployment compensation. The Supreme Court reasoned that imposing such an unequal burden could be done only if the state could show 345

M. C. Nussbaum what they called a compelling interest in the uniformity in question for example, by showing that peace and safety were at stake. That was not the case here. During the Vietnam War era, moreover, the traditional idea of religiously based accommodation was extended to include many people whose conscientious refusal to fight did not stem from anything like a traditional religious belief or practice, but simply from their own conscientious searching (United States v. Seeger, 1965; Welsh v. United States, 1970). In 1990 this tradition received a blow, when a majority of the Supreme Court, influenced by the very strong opinions of Justice Scalia, reverted to the Lockean position, in a case concerning Native American drug use: the use of peyote, a drug illegal under the applicable state law, in the sacred ceremonies of an Oregon tribe (Employment Division v. Smith, 1990). Justice Scalia said that we would have chaos if we allowed exemptions to general laws, and he carried the day. The public was outraged; two years later a law (the Religious Freedom Restoration Act) was passed by Congress that restored the more protective tradition through legislation. The Supreme Court then struck that law down on the ground that it exceeded Congresss power (City of Boerne v. Flores). Nonetheless, parts of the law remain in force, and by now Congress has righted the most egregious imbalances, legalizing the sacramental use of peyote. Many states, meanwhile, have passed protective legislation of their own that restores the space for religiously grounded accommodations or exemptions. By now, even the Court seems to be back on track. In the past two years, in two unanimous decisions, prisoners belonging to minority religions won the right to opportunities for religious practice similar to those already extended to Christians; and a small Brazilian sect won the right to use a hallucinogenic tea called hoasca in its ceremonies (Cutter v. Wilkinson, 2005; Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 2006). (This sect did not have the political clout of the Native Americans, so it was unable to move Congress: this is why it is so important for courts to be ready to intervene, as the new Chief Justice Roberts stated in his majority opinion in the drug case.) In that same case, during oral argument, Justice Scalia announced that we can make exemptions for religious minorities without courting anarchy, something that seems to be a big concession, and perhaps an indication that he is going over to the tradition he had previously opposed. Analytically, the cases do not really go beyond Alitos modest extension of the Lockean position. But they sound a promising note for the future. Europe today is in most respects Lockean. Since the eighteenth century, the dominant tradition has always been one of religious freedom combined with assimilation. As I shall discuss later, the French school dress code imposes special burdens on minorities, and would almost certainly be unconstitutional under the tradition I have described. So too would be the recent British policy that denied a Muslim girl an exemption from her schools dress code. The tradition says that to live with others on 346

Liberty of Conscience terms of fully equal respect means allowing them plenty of space to live the way their own conscience dictates, even when that seems pretty strange to the majority and requires not going along with majority rules. To apply penalties for conforming to the dictates of ones conscience, in matters where peace and safety are not at stake, is an affront to the person and the persons equality. I think that Europeans should at least contemplate the tradition I have described, and see what they think of it.

The modern constitutional consensus: non-establishment with equal respect

As I said, the liberty-of-conscience tradition quickly became skeptical of any sort of religious establishment, on the grounds that it is soul rape to impose any sort of orthodoxy on the striving individual conscience. Establishments were worst when they threatened liberty, penalizing people for non-orthodox worship, or forcing them to affirm orthodox sentiments that they might not believe, or attaching conditions of religious orthodoxy to a persons civil rights or ability to hold office. It was quickly understood, however, that even an apparently benign establishment fostered inequality, by making a statement that the government of the nation endorses a particular brand of religion. This endorsement is at the same time, inevitably, a disendorsement, creating an in group and an out group. As James Madison said, [A]ll men are to be considered as entering into Society on equal conditions, and even a non-coercive establishment violates that equality (Madison, 1785, in McConnell et al., 2006, pp. 49 53). Madison was speaking, in 1785, in opposition to a proposal to tax all citizens of Virginia for the support of the established Anglican church. According to the proposal, citizens who were not Anglicans would be permitted to divert their tax payments to their own churches. Nonetheless, Madison thought that the bare announcement that the Anglican Church was the state church created ranks and orders of citizens. In 1984, discussing the US Constitutions ban on religious establishment, Justice Sandra Day OConnor recapitulated the long Madisonian tradition: The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a persons standing in the political community Endorsement sends a message to non-adherents 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. Disapproval sends the opposite message. (Lynch v. Donnelly, 1984) According to Justice OConnors very helpful analysis, the right question to ask of any potentially problematic policy in the area of religious establishment is the following one: would an objective observer, acquainted with all the relevant historical and contextual facts, view the 347

M. C. Nussbaum policy in question as one that makes a public statement of endorsement or disapproval, sending a message of inequality? With this idea in mind, let us briefly look at three areas of past and current controversy: school prayer, public displays, and state funding of religious schools. In each case, I shall look at just one case as representative of the tradition. All American public schools used to include a lot of religious observances: prayer, Bible reading, and so forth. Invariably, these observances were Protestant in character, and people did not even notice how unfair they were to Catholics. Bible readings were from the King James Version, the Ten Commandments were cited in their Protestant version, and so on. When Catholics protested, they were not well treated: Catholic children were often beaten for refusing to say the Protestant version of the Commandments. By the mid-twentieth century, those barbarisms had been rejected, and people sometimes even allowed a choice among versions of the Bible, but there was still an implicit rejection of anything non-Christian. In a small town in Pennsylvania in the 1950s, law required a Bible reading at the start of the school day. A student would be chosen to lead it each day, and it would be broadcast to all classrooms on the public address system. Sixteen-year-old Ellory Schempp, a very bright and thoughtful young man who is now a distinguished research physicist, thought about this custom and considered it was probably wrong and unconstitutional. He decided to challenge it. On his day to lead the Bible reading, he brought in a copy of the Koran, and read from that. (This was well before there were more than a handful Muslims in America, and nobody at all was thinking about their religious sensitivities. Schempp himself was a Unitarian, and still is; he was just making a point about the statement of exclusion made by the school policy.) Immediately the school principal subjected Schempp to disciplinary action, and this same principal wrote to all the universities to which Schempp had applied, telling them not to admit this subversive character. Schempp borrowed his fathers typewriter and typed a letter to the American Civil Liberties Union, enclosing $10 that he had saved up from his allowance, and asking them to take his case. (This is one of the rare cases where a child is not simply the occasion for a parent to challenge the law; Schempps parents went along, but he was the instigator.) Eventually the case went to the US Supreme Court, and the Pennsylvania school law mandating Bible reading was declared unconstitutional (Abington School District v. Schempp, 1963). I think it is not hard to see the wisdom in that decision, and it is a very good thing that small children from non-standard religions, or with no religion, do not have to face this coercive pressure. Hinduism and Buddhism are the two fastest-growing religions in the United States, and the custom Schempp challenged made a strong statement that children from these religions, as well as Islam, are not fully equal citizens. I have talked about public displays already in analyzing the Pittsburgh case of the nativity scene and the menorah. But let me now mention 348

Liberty of Conscience another one that came up only last year, and that was extremely divisive. The Ten Commandments seem to many Americans a very important sign of Judaeo-Christian traditions that many Americans cherish. At one extreme, nobody thinks that it would be right to require affirmation of the Ten Commandments as a condition of public office, as once was done in several states. At the other extreme, nobody thinks it objectionable that the building in which the United States Supreme Court sits contains a sculpture of Moses holding the Ten Commandments along with a large number of other representations of famous lawgivers throughout history. This seems OK to everyone, because the connecting theme of all the sculptures is clearly law, or law and its place in history, and no special prominence is given to Moses. No reasonable observer would conclude that the sculptures make a statement that non-Judaeo-Christians are not fully equal members of the community. On those extremes, there is agreement. In the middle, there is lots of terrain for disagreement. The two cases that came before the Court last year were as follows. In McCreary County, Kentucky, displays of the Ten Commandments were required by law in all courthouses and all public schools. The legislature announced that its purpose was to affirm Americas Judaeo-Christian religious heritage. When the displays were challenged by lower courts, they grudgingly added some other parts to the display, setting the Declaration of Independence and other historical documents beside the religious text, saying that their purpose was now to show the formative role played by the Ten Commandments in Americas legal history. (This is a rather absurd claim, since the commandments are either so religiously focused that they suggest no direction for law in a pluralistic society, or so general Thou shalt not kill that they suggest no specific or particular direction that a lawgiver could have found useful.) Meanwhile, my other case; the state of Texas has for 40 years had on its statehouse grounds a large monument including the whole text of the Ten Commandments, in a version prepared by an interreligious committee consisting of Protestants, Catholics, and Jews. It was donated by a private organization, and it is among many other monuments donated by other private organizations that commemorate various things that the various donors wanted to commemorate, such as the heroes of the Alamo, fallen confederate soldiers, voluntary firemen, the Texas Rangers, Texas cowboys, Texas children, Texas pioneer women, Pearl Harbor Veterans, the Statue of Liberty, Korean War veterans, World War I veterans, disabled veterans, Texas peace officers, and a few others. In separate cases, both of these displays had been found unconstitutional by lower courts. The task before the Supreme Court was to resolve the two cases. Inevitably and rightly, the analysis focused on issues of endorsement and equality. The Kentucky display was struck down, because it conveyed the message that Judaeo-Christian religion is preferred and other sources of value and meaning are dispreferred 349

M. C. Nussbaum (McCreary County v. American Civil Liberties Union, 2005). (I should add that it was the Protestant version of the Commandments, so the message really was that Protestant Christianity is preferred.) The Texas display was upheld by a very narrow margin (Van Orden v. Perry, 2005). That case, like the Pittsburgh case, is a difficult one, because the analysis rightly turns on subtle issues of context and perception. I think it was rightly decided, but one could also argue the other way. What is important is to see how different it is from the Kentucky case: the state is simply allowing different groups to make their own statements, and is not itself taking sides. Justice OConnors endorsement test, the legal version of James Madisons much earlier insights, gives good guidance and asks all the right questions. Finally, school aid. Tax money may not advance a particular religion over other religions, and also may not advance religion over non-religion. That is pretty generally agreed. But it is also clear, or should be, that it would be unfair for the state to treat religion with special disfavor. Given that the modern administrative state is so vast, entering into so many aspects of citizens daily lives, it is very difficult to withhold all state aid from religion without giving it horrible disadvantages. Suppose that churches did not have access to the public water supply, or the public sewer system. Suppose that a burning church would not be aided by the fire department, on grounds that the state cannot aid religion. These things look profoundly wrong, and nobody even suggests that this is the way things should be. Why? Because we see that equality is at issue: if these policies were adopted, the life, health, and safety of religious people would be at unequal risk, and the state would be making a statement that their safety is less important than that of the non-religious. So, that is the agreement at one end of the spectrum. At the other end, most people agree that it would be terribly wrong if the state of Texas, say, declared that it would give tax funds only to religious schools. Once again, however, there is a lot of terrain in the middle, and it has caused bitter division in America, particularly about various forms of public aid to religious schools. The division is so bitter in large part because of anti-Catholicism. Most of the religious schools in America are Catholic schools, and many Americans have long thought that these schools undermine democracy and breed herdlike obedience to authority. Even those people do not suggest that the parochial schools should not get water, or the services of the fire department and the police. But what about a state policy that says We will pay for the transportation of all children to whatever school they attend, on public buses? That policy was challenged in the late 1940s, a time of intense anti-Catholicism. In a famous case that set the parameters for all subsequent cases in this area, the Court argued that the transportation policy was not unconstitutional, because there was no subsidy for religious instruction, or, indeed, for anything about the religious school itself (Everson v. Board of Education, 1947). 350

Liberty of Conscience The controversy has continued. Can public money be used to pay for special education teachers for children with disabilities, or special remedial needs, teachers who would travel from school to school, visiting the public and the parochial schools alike? At one time, the Court said that this form of aid was unconstitutional, but the Court later reversed itself, and, with suitable limits, such a policy would now be ok (Aguilar v. Felton, 1985; Agostini v. Felton, 1997).3 Most controversial of all are the various voucher programs, which give parents in a failing public school district, under certain circumstances, some cash that they can use to pay their childs tuition at a private or parochial school if they choose. These policies are problematic, because they threaten to undermine the public schools. On the other hand, if they are confined to special cases where the schools have already been nationally declared to be a disaster area, the policies seem, at least to many and to me, to be acceptable (Zelman v. Simmons-Harriss, 2002). Here, as before, what is important to see is the importance of the equality analysis. We must always ask whether a given form of aid expresses government favor for religion or a particular religion, or whether, by contrast, a given refusal of aid expresses actual disfavor for religion. So far in this talk I have not used the words separation of church and state, so often used, especially by the left, in this connection. My avoidance of these words is deliberate. This slogan was, in fact, not part of our original constitutional tradition. It is not to be found in our Constitution, and none of the framers used it; they preferred the language of liberty and equality. The slogan arose in the mid-nineteenth century during the panic over Catholic immigration, and it expressed peoples fear that the Catholic church was going to take over American institutions (Hamburger, 2002). To some extent, the words can rise above their tawdry history, and in the mouths of some thoughtful liberals they do express admirable values of liberty and equality. But the idea of separation does not direct thought well. Total separation of church from state, if we think of it literally, is both impossible and undesirable. We do not want to deny the church the benefits of the fire department and the police. We also do not want to deny priests and ministers the right to run for office, although at some times in our history people have held that view. How much separation is a good thing, and how much is a bad thing? That is the question we must ask. And we can answer it well only with recourse to other more fundamental values, in particular those of equal standing in the political community and equal liberty. Once again, I think that this area of US legal thought is a valuable one for Europeans to ponder. Many issues that are emerging only now in Europe (the crucifix in the Italian public schools, the word Christian in the draft European Union constitution) have been pondered thoroughly in this tradition, and the traditions analytical framework seems like a good 351

M. C. Nussbaum one to apply to the European scene as well, since Europe, too, endorses the basic idea of equal liberty of conscience.

The attack on the tradition of equal liberty

The tradition I have praised has many enemies, but we can reduce them all to two, both rather common in decent modern liberal democracies, and it is with these assailants that I want to conclude. Neither is a double-dyed villain, but both, I believe, fail to understand something essential about what equal respect for persons requires. The first opponent I shall call the establishmentarian. This person thinks that good order and public safety require a public commitment to a religious orthodoxy, a dominant religious tradition. Life with so many different religions is too chaotic, too fraught, unless we can state quite clearly that this is who we are as a nation: this is our creed, our tradition, these are our religious values, and anyone who wants to live in peace among us has to acknowledge this and assimilate to it. Now of course the view I defend requires a nation to take a moral stand, saying this is who we are. Our freestanding political principles have a moral content, prominently including the idea of equal respect. But the establishmentarian says that we must go further: we must say This is the primary religion of our community. Establishmentarians are sometimes overtly malign: thus, in seventeenth-century America, the Puritans in Massachusetts imprisoned or expelled people whose beliefs did not suit the dominant norm. In nineteenth-century America, as I have mentioned, little Catholic children were beaten, sometimes quite savagely, if they would not recite the Protestant version of the Ten Commandments in the shared public schools. Mormons and Jehovahs Witnesses were assaulted and killed in substantial numbers. Today, however, the malign sort of establishmentarianism is reasonably unpopular in Europe and North America, and a more cozy apparently benign form has taken its place: the form that says we need only be clear about who we primarily and centrally are, and then the different can live in peace among us. This is the view that I have targeted all through my talk. It is a view held by many Europeans, those who think it important to assert that the European Union is fundamentally Christian, those who like to retain crucifixes in Italian public school classrooms, and many others. In America, it is the view of the religious right, of George Bush and, on the Supreme Court, of Justices Scalia and Thomas. Justice Scalia has recently said explicitly, in his opinion in the Ten Commandments case, that ours is basically a monotheistic nation, and that it is perfectly all right for public monuments and public ceremonies to affirm the truth of monotheism (under which he explicitly included Christianity, Judaism, and Islam), while disfavoring religions such as Hindu polytheism and Buddhist nontheism, as well as atheism and agnosticism. The slightly more subtle view 352

Liberty of Conscience of the late Chief Justice Rehnquist was that it was never right to favor a particular religion or religions, but it would be a very good thing, and constitutionally permitted, to favor religion as a whole over non-religion. That view is only apparently better, since it allows agnostics and atheists to be cast as second-class citizens. What is wrong with this view is that it does not treat people as equals. It asks some to subordinate their conscientious commitments to those of others. Even a benign establishmentarianism can have quite far-reaching effects disadvantageous to minorities. It can support policies that use taxpayer money to fund schools only of a particular religious sort, policies that allow religious tests for public office, and so on. But even when an establishment does not do this as with the one in Virginia that James Madison criticized, which allowed people to opt out of the tax donation to the established church as Madison said, such a policy nonetheless, just by announcing a preferred state religion, tells minorities that they do not enter the public square on equal conditions. It asks them to live on terms of permanent second-class citizenship and a certain degree of humiliation, as public ceremonials announce again and again that the outsiders are not really equal. It is easy to frown on this opponent at least for American intellectuals, for whom these views are associated with the religious right, whom American intellectuals are accustomed to think of as very different from themselves, and not very bright. It is less easy to frown on my second opponent, who is found, mostly, on the left. This opponent I shall call the anti-religionist. This position, as you shall see, is the obverse of Rehnquists. The anti-religionist thinks that all religion should be disfavored in the public square not for reasons of equality, or liberty, but because he or she thinks religion somewhat embarrassing, a relic of a pre-scientific era, and a source of nothing but trouble. We can best build lasting democracies, thinks the anti-religionist, if we discourage religion and build on secular scientific rationality. Of course we should not repress religion or legally penalize religious people or religious observance. But we should certainly discourage it, and there is absolutely no reason to bend over backwards to give it space to unfold itself. Anti-religionism is official policy in France, although in a form that does not valorize science as later forms tend to do. It is the semi-official intellectual creed of post-Nehruvian India, where one would not find many progressive intellectuals, whether Hindu, Muslim, or Christian, who would not speak slightingly about religion in much the way that Nehru did, treating it as a relic of the past that holds India back from her greatest achievements. It was the view of the great American philosopher and educator John Dewey, whose influence played a key role in the drive to defund religious schools. It is a view that many individual intellectuals express with passion today. What is wrong with anti-religionism? Well, the first thing that has been wrong with most actual versions of it is that it is likely to be especially 353

M. C. Nussbaum harsh toward minority religions. The religion of the majority does not look particularly religious, because it is so much a part of dominant laws and customs that it does not stand out. Dewey had few objections to Protestantism, because Protestants went to the public schools: after all, why should they not? Those schools were basically Protestant schools, with Protestant prayer and so on. Protestants did not make a fuss about wanting a different version of the Ten Commandments: after all, the one that was ubiquitous was already their version. Protestants did not ask for special dispensations regarding days of work: after all, they already had Sunday off. So Protestants could be treated as if they were non-religious already. They fit in, and did not ask for anything on religious grounds. AntiCatholics liked to add that Protestantism shares the anti-religionists commitment to the autonomy of each persons reason, so the religious aspect of Protestantism could be seen as a slightly older form of nonreligion. Catholics were another matter: they had these outlandish hierarchies, these nuns and priests in odd costumes, these garish ceremonials; and they made a fuss about everything, wanting their own Bible, their own Ten Commandments, their own schools even. So Dewey and his students conducted studies of Catholic communities and wrote that Catholics are not capable of democracy; that they are servile and submissive. It was one of Deweys students, Paul Blanshard, who wrote the extremely popular and influential book American Freedom and Catholic Power (Blanshard, 1949), which told Americans that the power of the Catholic church was as great a threat to American values as global communism. So, the first problem with anti-religionism is that anti-religionists often do not play fair, and anyone who wants to look different gets worse treatment than an equally religious person who looks like the dominant norm something that has meant that anti-religionism has typically been quite unfair to Jews and Muslims, and is so in France today. Jewish yarmulkes and Muslim headscarves are forbidden in schools along with large Christian crosses: but it is rarely mentioned that this is an utterly unequal burden, since Jewish men and Muslim women regard the forbidden articles of dress as religiously obligatory, while Christianity does not oblige Christians to wear large crosses. The second problem with anti-religionism is that it is likely to be stingy with accommodations. Because it thinks that religion is fundamentally not very important, it is not likely to go out of its way to give people dispensations from laws of general applicability on grounds of conscience. Drug laws, laws about work days, all of these will be arranged to suit the convenience of the modern administrative state. If the anti-religionist thinks a particular war wrong, then he or she may uphold a limited right to conscientious objection in wartime. But not on grounds of conscience in the traditional sense. Anti-religionists simply do not have very much respect for the capability of conscience, not in so far as it exercises itself in a religious way. 354

Liberty of Conscience Third and most basic: even a fair anti-religionism is not compatible with a thoroughgoing commitment to equal respect. Anti-religionism says, here we are, the enlightened ones philosopher Daniel Dennett calls himself and his fellow anti-religionists the brights (Dennett, 2003, 2006). We brights see more clearly than you benighted people over there. This is not a very good stance to take toward ones fellow citizens, in a world full of mystery and complexity, where it is a very good bet that nobody, not the anti-religionist either, has the ultimate solution to questions about the meaning of life and death that have plagued humanity ever since humanity began to exist. If scientific anti-religionists think they do have the answer in the form, for example, of a reductive physiological account of the life and death of organisms we should protest that this is an answer so drained of mystery and genuine curiosity that it is this answer, not the traditions of the religions, which demeans humanity and compromises the project of building a rich multifaceted state based on respect for humanity. (The framers of the Universal Declaration of Human Rights agreed not to base the declaration on any specific religious or ethical comprehensive doctrine, but they did need to agree, they thought, on a moral view of human dignity that made human beings not mere bundles of matter, not mere objects to be used for the ends of efficiency.) Nehru and John Dewey, of course, were not the scoffing sort of antireligionist, and it insults them even to mention them together with Dennett. But then they should have understood that, as Dennett never would or could, the complex mysteries of human life call forth many different types of committed searching from the internal capability of conscience in human beings, some forms being non-religious and some religious and that the capability with which people conduct this search is worthy of the greatest respect, and of fully equal respect, whether the form the search takes is religious or non-religious. On his night table on the day of his death, Nehru had copied out, in his own hand, these lines from Robert Frost: The woods are lovely dark and deep,/ But I have promises to keep,/ And miles to go before I sleep,/ And miles to go before I sleep. That a man with such a profound sensitivity to the depths of the human conscience and its strivings should have so often denigrated the religious forms this striving took in the vast majority of his countrymen is a sad fact, one to be explained, perhaps, by the strange confluence of elitism and Marxism in his education. In any case, we should follow Nehrus poetic soul and not his cramped vision of his fellow citizens, as we try to cultivate the humanity in each of us that will sustain our own developing commitment to democracy. The human internal capability of conscience is a delicate and vulnerable thing. It needs support from laws and institutions. Because it is worthy of equal respect, it is worthy of equal support. An approach to political principles based on the idea of human capability should learn from the tradition I have described, and reject both establishmentarianism 355

M. C. Nussbaum and anti-religionism in order to be fully respectful and fully fair to all human beings.

1 This paper is an overview of the argument of Nussbaum (forthcoming 2008), which contains chapters on each of its major sections. 2 A full list of the US Supreme Court Cases can be found at the end of the text. 3 The facts in both of these cases concerned a remedial program for low-income students, but the Aguilar holding was understood to make similar programs of special education for children with disabilities unconstitutional if they involved public money being used to support teaching by such teachers on the premises of a religious school.

United States Supreme Court Cases

Abington School District v. Schempp, 374 U. S. 203 (1963). Agostini v. Felton, 521 U. S. 203 (1997). Aguilar v. Felton, 473 U. S. 402 (1985). Board of Education v. Barnette, 319 U. S. 624 (1943). Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U. S. 520 (1993). City of Boerne v. Flores, 521 U. S. 507 (1997). County of Allegheny v. American Civil Liberties Union, 492 U. S. 573 (1989). Cutter v. Wilkinson, 544 U. S. 709 (2005). Employment Division v. Smith, 494 U. S. 872 (1990). Everson v. Board of Education, 330 U. S. 1 (1947). Fraternal Order of Police v. City of Newark, 170 F. 3d 359 (3d Cir. 1999). Gonzalez v. O Centro Espirita Beneficente do Vegetal, 126 S. Ct. 1211 (2006). Lynch v. Donnelly, 465 U. S. 668 (1984). McCreary County v. American Civil Liberties Union, 125 S. Ct. 2722 (2005). People v. Philips, N. Y. Court of General Sessions, 14 June 1813 (privately recorded and reprinted in McConnell et al., 2006, pp. 103109). Sherbert v. Verner, 374 U. S. 398 (1963). U. S. v. Seeger, 380 U. S. 163 (1965). Van Orden v. Perry, 125 S. Ct. 2854 (2005). Welsh v. U. S., 398 U. S. 333 (1970). Zelman v. Simmons-Harriss, 536 U. S. 639 (2002).

Blanshard, P. (1949) American Freedom and Catholic Power, Beacon Press, Boston, Mass. Dennett, D. (2003) The bright stuff, The New York Times, 12 July, op ed page. Dennett, D. (2006) Breaking the Spell: Religion as a Natural Phenomenon, Viking, New York. Hamburger, P. (2002) Separation of Church and State, Harvard University Press, Cambridge, Mass. Locke, John (1689) A Letter Concerning Toleration, edition of 1983, Hackett Publishing, Indianapolis. Madison, J. (1785) A memorial and remonstrance against religious assessments, in M.W. McConnell, J.H. Garvey and T.C. Berg (Eds.), Religion and the Constitution, 2nd edition, Aspen Publishers, New York, pp. 4953. McConnell, M.W., Garvey, J.H. and Berg, T.C. (2006) Religion and the Constitution, 2nd edition, Aspen Publishers, New York.


Liberty of Conscience
Nussbaum, M.C. (forthcoming 2008) Liberty of Conscience: In Defense of Americas Tradition of Religious Equality, Basic Books, New York. Rawls, J. (1996) Political Liberalism, expanded paper edition, Columbia University Press, New York. Williams, R. (1644) The Bloudy Tenent of Persecution, in The Complete Writings of Roger Williams, volume 3, edition of 1963, Russell and Russell, New York. Williams, R. (1988) The Correspondence of Roger Williams, in Glenn, W. LaFantasie (Ed.), two volumes, Brown University Press, Providence, R.I.