The Wages of Advocacy

Liberty of Conscience:

In Defense of America’s Tradition of Religious Equality

by Martha Nussbaum

Basic Books, 320 pages, $27.50

Martha Nussbaum’s Liberty of Conscience is a blend mixed from approximately equal portions of John Rawls, Sandra Day O’Connor, and the pack of recent writers deploring America’s imminent theocracy. Nussbaum’s ideal is Rawls’ style of public discourse, in which citizens would refrain from bringing their particular religious beliefs into public debates. Like Justice O’Connor, she would forbid government to endorse religion. And she is endlessly critical of the religious right, which she portrays as mounting a major assault on the American tradition.

Along the way, Nussbaum insists she is friendly to religion. She presents herself as a religious person in the Reform Jewish tradition, and she rebukes aggressive atheists of the Daniel Dennett variety. So, for instance, she enthusiastically favors accommodation of conscience, and she allows that localities may adopt school-voucher programs on neutral terms. And while maintaining that the words under God in the Pledge of Allegiance are unconstitutional, she concludes that the religious meaning of “In God We Trust” has been ­sufficiently rubbed off by time that the national motto is probably ­acceptable.

There is nothing especially novel or radical in these views, and Nussbaum’s presentation of them is accessible and often engaging. She does more than most scholars to humanize controversies that are often discussed in more abstract terms. And yet, not content to propose what might be an acceptable compromise around which Americans might coalesce, Nussbaum claims to be speaking in a more principled way for the “American tradition of religious equality.”

Sometimes the history she cites provides support for her views. Often it does not”and when history and Nussbaum’s prescriptions diverge, Nussbaum refashions the history to fit the prescriptions. Taken as a whole, her surgical treatment of “the American tradition” amounts to a sort of extreme makeover. The refashioned version may be more attractive than the original (to contemporary liberal sensibilities, anyway), but it is a makeover ­nonetheless.

Nussbaum is on firmest historical footing in advocating accommodation of conscience in the form of what are commonly described as free-exercise exemptions. The issue is basically this: If a law (military conscription, for example) that is in its terms neutral toward religion nonetheless commands some people (Quakers, perhaps) to act contrary to their religion or conscience, should conscientious objectors be presumptively exempted from compliance?

Modern jurists and scholars have divided on the issue. But, as was evident from the broad coalition that gathered in reaction to the Supreme Court’s 1990 decision ruling that exemptions are permissible but not constitutionally mandated, there is no seismic divide here: Religious groups and more secular organizations such as the ACLU converge in favoring free-exercise exemptions.

Perhaps because accommodation of conscience has enjoyed broad support among Americans, Nussbaum’s chapter devoted to the issue is the most balanced in her book. She ably reviews crucial controversies from the founding era on, and, while acknowledging the possibility of good-faith disagreement, she makes a strong case that the tradition favors exemptions. The case is not quite as powerful as Nussbaum says it is, however: Her attempt to enlist the support of Roger Williams and James Madison, for example, is dubious. Still, her chapter on accommodation convincingly shows that, in both the founding and more modern periods, reflective judges and ­legislators have struggled to avoid forcing people to choose between obeying the law and obeying their ­conscience.

Readers may wish that Nussbaum had done more to elaborate her rationale for treating conscience as worthy of special protection in law. Defining conscience as a “faculty with which each person searches for the ultimate meaning of life,” she argues that this faculty is “worthy of respect whether the person is using it well or badly.” This is an intriguing claim, but it ­raises a host of questions. Is there really a faculty of the kind Nussbaum describes? Why is this faculty so intrinsically valuable, even when used badly? And can the claim of special value for a meaning-­seeking faculty be commended even to people who believe that the notion of an “ultimate meaning of life” is mistaken or ­nonsensical?

If it is plausible to say that Americans have generally favored the accommodation of conscience, the same cannot be said of Nussbaum’s view that government should be forbidden to endorse religion, as was manifest in the widespread, bipartisan outrage provoked by the Ninth Circuit Court of Appeals’ 2002 decision striking “under God” from the Pledge of Allegiance. Here again, Nussbaum claims to be speaking for the American tradition. But in this case the evidence is overwhelmingly against her.

Thus, Nussbaum’s condemnation of governmental endorsement of religion is out of tune with much of what Americans have most cherished in our political tradition. Examples could be multiplied almost endlessly. Under her principles, for instance, the Declaration of Independence, with its invocation of “Nature and Nature’s God” and its assertion that humans have rights with which they are “endowed by their Creator,” is surely suspect. And her prohibition seems necessarily to condemn the seminal enactment that arguably got the whole legal movement started. After all, Jefferson’s revered Virginia Statute for Religious Freedom begins with the decidedly theological pronouncement that “Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens . . . are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do.”

In opposing such expression, Nussbaum is doing just what she repeatedly and stridently criticizes those she opposes for doing: She is assailing a central American tradition. Nussbaum nonetheless struggles to produce traditionalist credentials. Her principal tactics (beyond simply omitting to notice most of the contrary evidence) are to commandeer some giants from the American past and to argue that the tradition’s general commitment to religious equality entails her more specific commitments to nonendorsement and a secular public ­discourse.

Roger Williams, the presiding hero of the book, emerges early in Liberty of Conscience as a proto-John Rawls. But this is a Williams substantially reconstructed to suit contemporary liberal tastes. Thus, Williams is depicted as a gentle, thoroughly ­lovable (at least by anyone except ogreish Puritans like John Cotton), patiently ­reasonable man”a friend of Indians, a man of deep convictions who nonetheless anticipated Rawls in refraining from invoking these convictions in arguments on public issues.

To be sure, the real Williams was indeed a courageous figure, a passionate champion of freedom of conscience and, it seems, a generally likable fellow. But Nussbaum keeps in the shadows the more complex and darker Williams”a man, for example, who insisted that civil authority is “God’s sword” to punish (among others) men who wear long hair and who thought Quakers should be sanctioned for their disrespectful practice of addressing civil officials using the biblical language of “thee” and “thou.” We see little of the Williams who haggled endlessly with Puritans and Quakers over the proper interpretation of Scripture and whose defense of conscience and of a secular public square was firmly and explicitly grounded in those interpretations. This was the Williams, as Timothy Hall’s more historically faithful study shows, whose religious tolerance was directly if paradoxically the product of his own religious fanaticism.

On this last point, Nussbaum says Hall is wrong. Williams held “peculiar religious beliefs,” she concedes, but he “nowhere alludes to these beliefs in arguing for liberty of conscience”nor should he, since it is his considered position that political principles should not be based on sectarian religious views of any sort.” How to resolve this disagreement? Here is my suggestion: Google Williams’ “The Bloudy Tenet of Persecution” and see for yourself whether he appeals to his sectarian religious beliefs in making his case for conscience. You should have a pretty clear answer in about three minutes.

If Nussbaum thinks Roger Williams anticipated John Rawls, she portrays James Madison as the forerunner of Justice O’Connor. Of Madison’s Memorial and Remonstrance (the eloquent brief for religious freedom he wrote during the successful campaign in Virginia in which a bill supported by Patrick Henry for subsidizing Christian ministers was defeated and Jefferson’s Virginia Statute for Religious Freedom was adopted instead), Nussbaum declares that “Madison’s central argument is that any sort of establishment violates the equality of citizens.” She goes on to explain that, for Madison, “the very fact that the state endorses one religion, Christianity, above another is itself a violation of the equality of citizens.”

It would be convenient, for Nussbaum anyway, if this were so. The truth, however, is that equality is not Madison’s central argument (unless by “central” Nussbaum means that it comes up toward the middle of Madison’s brief). On the contrary, Madison’s primary argument in the Memorial and Remonstrance is explicitly theological in character: “It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.”

And when Madison does make an equality argument, he actually uses the idea to oppose exactly the kind of accommodation that Nussbaum favors. Patrick Henry’s bill contained a partial exemption for “Quakers and Menonists” who were religiously opposed to a paid ministry, and Madison evidently thought it unfair to offer such special accommodation.

Far from contending that state endorsement of religion violates equality, in the Memorial and Remonstrance Madison himself endorsed both religion in general and Christianity in particular. And he was the leading force in securing the adoption of Jefferson’s statute, with an eloquent and overtly religious preamble noted earlier.

In another sense, however, Nussbaum is right to read a more general commitment to equality into Madison’s position. Closely considered, equality is a formal notion: It means, essentially, that “like cases should be treated alike,” but it does not provide the substantive criteria for determining which cases are like. In reality, the world is not divided into people who favor equality and people who oppose it: The real divisions are over what substance to pour into that receptive vessel.

Nussbaum’s overall strategy is, first, to show that, even when they did not use the term, Williams and Madison and the founders were committed to equality; then, having extracted such a commitment, she pours into that formal notion the substantive content that she favors. The strategy succeeds at the first stage. Madison and his contemporaries were committed to equality in some sense. But when Nussbaum attributes to them her own substantive commitments and her particular version of equality”in particular, the idea that equality is violated when government makes religious statements”she simply remakes the founders in her own image.

In support of this makeover, Nussbaum argues that a commitment to religious equality leads ­inexorably to a prohibition on governmental endorsement of religion, even if Madison and Jefferson and Lincoln”and Franklin Roosevelt and William O. Douglas and Bill Clinton and George W. Bush”have failed to grasp the implication. In a large and pluralistic community, if government endorses any religious belief there will inevitably be citizens who disagree. To this extent, these citizens are likely to feel like outsiders. But doesn’t religious equality mean that no one should be made to feel like an outsider based on religion?

There is no doubt a beguiling plausibility to this argument. But the logic is hardly inexorable, and the conclusion is ultimately untenable. Consider the same argument in a free-speech context. Free-speech doctrine heavily stresses an equality theme; nonetheless American governments constantly say and do things that contradict beliefs some citizens hold dear. Suppose one of these offended citizens objects, “I’m supposed to be treated with equal respect, but you’re making me feel like an outsider by putting the weight and prestige of government behind beliefs that contradict my own deepest convictions.” We would patiently explain to this dissenter that governments say”and must say”lots of things, including things that offend many of us. But we are still equal citizens, and equally citizens, in the crucial sense: We enjoy the full panoply of rights and privileges”free speech, due process, and so forth”that other citizens enjoy. A right not to have government say things that contradict anyone’s deep convictions is not, and realistically could not be, among those equally distributed rights.

This conclusion does not change just because the deep convictions that government offends in a particular case happen to be religious. And, indeed, when it is convenient Nussbaum fully understands the point. For example, she maintains that the public schools should teach evolution and not creationism, even though she knows that theories of evolution contradict the religious beliefs of some students.

In one prescient paragraph that should have been crucial to the book, Nussbaum concedes that equality “does not imply that all religions and views of life must be (equally) respected by government: for some extreme views might contradict, or even threaten, the very foundations of constitutional order and the equality of citizens within it.”

The qualification most obviously covers citizens who favor things like torture or slavery, she explains, but in reality it applies as well to all who hold “opinions that teach the political inequality of others” (a category that, at least in Nussbaum’s interpretation, evidently includes everyone who supports keeping “under God” in the Pledge). These people “will not be suppressed,” but they are at a “disadvantage,” and there is no way to prevent them from feeling like outsiders.

I do not mean to criticize Nussbaum for qualifying equality in this way. On the contrary, I think she has a valid point”and one she ought to have generalized. Inevitably, a government will stand for and express many things. And, in a pluralistic society, some citizens will reject things the government says, sometimes because these statements contradict those citizens’ own deeply held religious beliefs. The modern political problem”the problem of e pluribus unum ”is to devise ways of maintaining community in a pluralistic society in which citizens have an equal right to adhere to and express their beliefs but in which, inevitably, not all deeply held beliefs will be consistent with those expressed by ­government.

It is, to be sure, a daunting problem. Rather than acknowledge and address that problem, though, Nussbaum takes the low, rhetorically easy road. Thus, she consistently depicts America’s cultural struggles, past and present, not so much as a series of conflicts between people who in good faith have held different beliefs and constitutional visions but rather as a struggle between those who have sustained the “American tradition” and those who, acting from baser motives, have assailed it. It is a stark story of good guys (Williams, Madison, Nussbaum, who are committed to fairness, equality, and liberty) struggling against bad guys (the Puritans and the modern religious right, who from selfishness or fear want to impose an orthodoxy).

Depictions of nice liberals vs. nasty theocrats are, of course, entirely familiar. Coming from a scholar like Nussbaum, though, this performance is disappointing. And the performance is laden with ironies. Thus, while inveighing against government-sponsored orthodoxy, she makes it perfectly plain that there is a set of right or proper beliefs and values (an orthodoxy, though of course she doesn’t call it that) that she wants embodied in law, endorsed by government, and taught in the public schools. Throughout the book, she expresses deep distress about how religious expression by government”prayer in the schools, for example, or the words under God in the Pledge”may create a sense of exclusion in religious minorities and agnostics. But she seems serenely unconcerned when the same kind of injury is inflicted on, say, fundamentalist Christians.

In one remarkable passage, after noting that nineteenth-century proponents of “nonsectarian” public education somehow failed to see that reading the King James Bible in schools was offensive to Catholics, Nussbaum says in censorious terms: “It’s rather extraordinary that people had so little sense of history that they didn’t notice this, or perhaps they simply didn’t care.” Perhaps so, but the observation is susceptible of more immediate application.

Over and over, Nussbaum contends that the people whose views she opposes are acting from insecurity and fear. The irony once again is palpable, since at various places in the book Nussbaum herself describes America in conspicuously alarmist terms. The American tradition is “under assault,” she says; it is “facing a huge threat.” “An organized, highly funded, and widespread political movement wants the values of a particular brand of conservative Christianity to define the United States.” Sometimes the language is ominous, as when she ob­serves that “the current threat is not, or not yet, violent.” Who is it who speaks from insecurity and fear?

Perhaps the central irony, though, is that, while insisting on equal respect for all, Nussbaum herself seems unable to extend a basic respect to those whose views she rejects”or even, for that matter, to some of those whom she adopts as the book’s heroes, Roger Williams and James Madison. You do not show genuine respect by foisting your views onto another person, living or dead, and conscripting him or her for your cause. And you definitely do not show respect by treating another person’s beliefs dismissively as a product of “panic,” “selfishness,” or a desire to “lord it over ­others.”

Judge Learned Hand once ob-served that “you may take Martin Luther or Erasmus for your model, but you cannot play both roles at once; you may not carry a sword beneath a scholar’s gown, or lead flaming causes from a cloister.” Perhaps Hand posed the alternatives too starkly, but surely he identified a real tension that would-be public intellectuals must face. Martha Nussbaum is, sometimes, a first-rate and even brilliant scholar . But she is also, sometimes, an advocate. Liberty of Conscience is held out as a work of scholarship, but it also pays, at a premium, the wages of advocacy.

Steven D. Smith is Warren Distinguished Professor of Law at the University of San Diego and the author of Law’s Quandary (Harvard University Press).