Book Reviews

Separation Anxiety

Can the American approach to religion work outside the West?

By Yehudah Mirsky

Tagged Church and StateReligion

Liberty of Conscience: In Defense of America’s Tradition of Religious Equality By
Martha C. Nussbaum • Basic Books • 2008 • 320
pages • $28.95

Something there is that doesn’t love a wall, That wants it down,” wrote Robert Frost. Martha Nussbaum doesn’t cite Frost directly, but the spirit of that poem hovers over her new book, even if what she has in mind is less Frost’s rural New England than Thomas Jefferson and the conventional shibboleths of East Coast liberalism. In this powerfully argued and often moving book, Nussbaum, a distinguished professor of philosophy at the University of Chicago, takes a deftly wielded sledgehammer to the “wall of separation” between church and the state much beloved of liberals–not, as some would have it, to allow a religious takeover of the public sphere, but to make for a neutral public sphere, safe for religious and non-religious citizens, of all shapes and sizes. Informed by religious teachings and traditions, she argues, this approach would in turn make for a richer liberalism.

I live in Jerusalem, where we are surrounded, and often defined, by
walls of all kinds. Stepping out of our apartment building in the Abu
Tor neighborhood, at one end of the block you can see the walls of the
Old City, and at the other the separation wall between Israel and the
Palestinian territories and, off in the distance, the Judean desert.
The Old City walls project a stately image of an ordered world; the
separation wall, a much darker image of a bitter conflict in which
religious and national identities are hopelessly intertwined. Living
here has taught me that the world needs America, because the world
needs hope, including the hope that religious-national conflict is not
the last word in human experience. This makes Nussbaum’s book an
important read, but a poignant one too. Can all people–wherever they
are and whatever they have inherited–live by the conviction that all
men are created equal? She thinks so. I hope so.

As her title makes clear, in Nussbaum’s reading, the American
constitutional tradition, thought through to its deepest intentions and
most enduring foundations, is concerned above all with equality–with
enabling all citizens to cultivate themselves and act on their moral
choices in keeping with the dictates of their consciences, by the
lights of their various religious or non-religious traditions, and in
peaceful concert with others. She repeatedly argues, in a manner at
once philosophical analysis and a lawyer’s brief (she does, after all,
have a joint appointment at Chicago’s law school), that the idea of
“separation” is, true to its name, a barrier to genuine understanding
of the Religion Clauses in the Constitution, an understanding better
captured by equality and the religious neutrality that term implies.

Nussbaum wages a dual polemic. On the one side, she departs from
conservatives like Antonin Scalia who are willing to countenance
varying forms of government engagement with specific, and usually
majority, religion in the public square. On the other, she takes on
liberals who dismiss religion as a tissue of nonsense, a stance which
she believes unnecessarily denigrates vast masses of the citizenry and
shortsightedly dispenses with the positive resources religion offers
for individual moral cultivation–and thus for democratic citizenship.

Nussbaum walks through the history of the First Amendment’s Religion
Clauses, addressing specific themes in the context of the times in
which they arose as matters of discussion and controversy. The hero of
her narrative is Roger Williams, best known as the founder of Rhode
Island and, since his scholarly rediscovery in the 1950s, hailed for
the proposition that disestablishment benefits religion and keeps it
out of the clutches of the state. But, following other more recent
scholars such as Clark Gilpin and Edwin Gaustad, and drawing on her own
intensive reading of the primary sources, Nussbaum goes further still,
arguing that Williams’ defense of religious liberty–liberty of church
from state and individual from church–was not merely a prophylactic
against majoritarian persecution. Rather, it was grounded in a deep
conviction about the “holy Light” of conscience: a universal, God-given
faculty of freedom of thought and decision shared by all people, no
matter their specific religion. God wants His creatures to choose well,
which also entails choosing for themselves in freedom.

Nussbaum has written elsewhere, among other things, substantial and
important works on Stoicism and its resonances for contemporary moral
life, and she sees a strong Stoic influence in Williams and other early
American thinkers, Christians and Deists alike. While she is
undoubtedly right on that score, at the same time Williams was deeply
Protestant–often in ways deeper than she acknowledges–ways that have
significant implications for the ability of his ideas to travel.

Alongside her hero Williams, in a supporting–and, at times,
troublesome–role is the better-known and vastly more influential John
Locke. “Locke diverges from Williams,” she finds, “by explicitly
insisting that once a generally applicable law has been made by an
impartial principle in a sphere the state regulates, people may have no
dispensation from that law for religious reasons. If their conscience
leads them to disobey, they will just have to pay the price and go to
jail.” Williams, by contrast, maintains the inviolability of
conscience–and its God-given right to express itself in action. These
two positions came together at the founding of the Republic, and the
tension between them plays itself out in constitutional jurisprudence
down to the present.

Indeed, when it came to fashioning a public sphere at the Republic’s
founding, James Madison, in his 1785 document “Memorial and
Remonstrance Against Religious Assessments,” channeled Williams in his
reading of the “self-evident” truth of equality as expressed in the
Declaration of Independence: “If ‘all men are by nature equally free
and independent’…Above all are they to be considered as retaining an
‘equal title to the free exercise of Religion according to the dictates
of conscience.’” Thus the two Religion Clauses of the Bill of Rights
together establish the equality of citizens. The Establishment Clause
prevents government from unequally distributing burdens and benefits on
a religious basis, while the Free Exercise Clause secures the
protection of individual conscience and its expression in action.

In Nussbaum’s telling, it was not until the twentieth century that
the constitutional tradition of political and civil liberties came to a
deeper self-understanding: that protection of individual conscience is
at the very heart of the Religion Clauses’ protection of minorities.
And, we might add, of the public sphere. Her account of the postwar
era, a crucial period here as elsewhere in Constitutional law, begins
with the 1947 decision Everson v. Board of Education, in which
Justice Hugo Black decided that a tax subsidizing student
transportation to Catholic schools, along with other non-profit
schools, did not violate the Establishment Clause. The decision, in
Nussbaum’s view rightly decided, nonetheless made a crucial and
problematic move, invoking Jeffersonian “separation” while deciding the
case on essentially neutrality/fairness-cum-freedom of choice grounds.
Right result, wrong reason. Why? “The rhetoric of ‘separation,’”
Nussbaum writes, “applied without a deeper theoretical analysis,
wrongly suggests that the goal of the Establishment Clause is to purify
the public square of all reference to religion, in effect establishing
secularism as the theory of government.”

This notion of “separation” came to full and problematic doctrinal flower in the much-cited 1971 case Lemon v. Kurtzman,
in which the Supreme Court enunciated a famous “three-pronged” test ,
by which government action concerning religion “must have a secular
legislative purpose”; its principal effect must be one that “neither
advances nor inhibits religion,” and it “must not foster an excessive
entanglement” with religion, a formulation which was taken by many to
inscribe “separation” into the very mechanics of constitutional

Nussbaum writes that this sense of “separation,” which has come to
define most liberals’ position on religion in the public sphere,
muddies the equality principle and creates unnecessarily contorted
questions of government involvement in the activities of religious
people and organizations, in an era in which government is ubiquitous
in citizens’ lives. Moreover, liberals’ reliance on the language of
separation enables them to overlook the rich and complex religious
traditions themselves; as a result they fail to see that genuinely
religious people may themselves be offended by Creationism and by a
Pledge of Allegiance that includes the words “under God.”

A better version of separation, she writes, is the “endorsement test” put forth by Justice Sandra Day O’Connor in 1984’s Lynch v. Donnelly.
It holds that the test for a government action is whether it 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.” This
test, Nussbaum writes, makes better sense of “separation” by
highlighting that a constitutionally illegitimate engagement with
religion is one which “offends against other constitutional values,
above all liberty and equality.” O’Connor’s test thus makes it possible
for government to engage when necessary and desirable with religion
while maintaining the core idea of equality.

“Endorsement” is nonetheless a subtle idea, and it has–in more
conservative jurisprudence as enunciated by, among others,
Scalia–shaded off into the idea of “noncoercion,” which holds that
government engagement with religion is bad when coercive (e.g., tax
money used for religious schools) and fine when ostensibly non-coercive
(e.g., religious displays on public property). Nussbaum points out,
however, that such a reading simply collapses the Establishment Clause
into the Free Exercise Clause, and it does nothing to prevent
preferential treatment for one (almost invariably the majority’s)

To that end, she devotes great space to the saga of the Religious Freedom Restoration Act. In the 1990 case, Employment Division v. Smith
(regarding the use of peyote in religious ceremonies), the Court
reversed several decades of precedent and ruled that the First
Amendment protects belief and not conduct: Thus if a law is not aimed
at suppressing any one religion, it can and must be applied even if it
disadvantages religious minorities. In response, in 1993 an
overwhelming majority of Congress passed the Religious Freedom
Restoration Act, which the Court declared unconstitutional in 1997.
Since then, versions of the Act have been enacted into state laws, and
Congress has enacted more narrowly tailored versions of the law in
those areas where it has greater regulatory power, such as interstate
commerce or state uses of federal funds.

Scalia, the author of the Smith opinion, would indeed seem to have a
point, the same one made by Locke: If a law is fair and reasonable, why
should religious people get a special break and be singled out for
greater protection? Why shouldn’t an atheist claim some exemption?
Indeed, in today’s America atheists look exactly like the kind of
persecuted minority Williams had in mind. Nussbaum grants the force of
these arguments and the weakness of many of the claims adduced to
refute them. She returns to Williams for an answer:

For Williams, the faculty with which each person searches for the
ultimate meaning of life is of intrinsic worth and value, and is worthy
of respect whether the person is using it well or badly…It is the
faculty, not its goal, that is the basis of political respect…From the
respect we have for the persons’ conscience, the faculty of inquiring
and searching, it follows that we ought to respect the space required
by any activity that has the general shape of searching for the
ultimate meaning of life, except when that search violates the rights
of others or comes up against some compelling state interest. Political
respect is addressed, in the first instance, to a capability of people,
one that demands both development and exercise; it is not addressed,
except derivatively, to the functions such a faculty performs.

The word “capability” points to a major theme in much of Nussbaum’s
other work, one of great–if, oddly, unstated–relevance to her
discussion here. In her scholarly and practical work on development,
especially in India and with the economist Amartya Sen, Nussbaum has
developed what she calls “the capabilities approach,” by which the
primary goal of political liberalism is to enable individuals to
develop their own capabilities. Indeed, in one of her earlier books, Women and Human Development, the “capabilities approach” was marshaled in an attack on Scalia’s reasoning in Smith.

Nussbaum’s approach, in turn, yields a vision of the public sphere
which animates her entire project. It is a public sphere which enables
the employment of public reason, in which all people, religious and
non-religious, may bring their full selves to bear. In Nussbaum’s
public sphere, “They recognize…that the space they share with others is
a space of diverse opinions about ultimate matters, and they respect
the springs of conscience in their fellow citizens that lead them to
diverse conclusions by diverse routes, even when they find these routes
and these conclusions profoundly mistaken.”

What does this mean for current debates over religion? Nussbaum
posits that including the words “under God” in the Pledge of Allegiance
does violence not only to atheists but to religious people as well, who
may see this as conflating God with the state–a possibility that the
language of “separation” simply does not capture. She opposes the
forced teaching of Creationism (or Intelligent Design), since it simply
cannot be called science; yet, she simultaneously argues that
proponents of evolution may themselves be deeply religious, and that
atheist scientists ought to stop treating all religious people as

Reading Nussbaum’s book in Jerusalem, I found myself asking over and
over, “Can this travel?” This celebration of conscience, this
determined reasonableness and commitment to liberal fairness–is it any
kind of model for the rest of the world? This question has assumed
greater significance in the light of democratization’s brief–and thus
far tragic–appearance as one policy answer to the religious wars
currently wracking the world. In a globalized world, it is a question
crucial for the liberal tradition’s own self-understanding.

There is something deep, undeniably and structurally Protestant in
Nussbaum’s ideas, certainly with regards to the centrality of
conscience and its complex relation to religious truth. This is not
meant as criticism as such, nor is it terribly surprising given
Protestantism’s centrality not only to America but to much of that
welter of forces we call modernity. (Nussbaum is herself Jewish and
draws regularly and meaningfully on her own religious life and
experiences). The philosopher Charles Taylor has pointed to the
crucially “neo-Augustinian” turn of modern thought, in which the truth
is to be found deep within the inner self. Yet if for Augustine the
neo-Platonist God lay at the foundation, for modern philosophers at the
base is the human person itself, as created by nature or by God. This
inward turn towards the truth–and its corresponding claim that truth
demands self-expression–played no small role in the development of
Romanticism, Modernism, and other movements. Yet to this day the
celebration of conscience as such bears enough of the traces of its
religious origin to remind us that it is anchored in very specific
traditions, and in an assertion of a very definite religious truth, of
the unique, indeed God-given, nature of the inner self. Williams is, in
this sense, very much a part of the neo-Augustinian turn.

Is this bad? No. But it points to the limits and very culturally
grounded nature of these ideas. And this seems of a piece with
Nussbaum’s (no doubt intentional) skirting of the metaphysical
apparatus of religion. One asks repeatedly, where, if anywhere, is
metaphysics in all of this? Where is the transcendent order which
animates religious belief and life, and which underpins so many
political doctrines, including liberalism itself?

In a deep sense, all Americans are Protestants. Or, put a little
less dramatically, all Americans partake of Protestantism’s deep roots
within our culture: a sense of religion as a matter of conscience; of
salvation as something that does not come by virtue of membership; the
separation of temporal from clerical power; and, where religion is
concerned, an essentially neutral public sphere. Thus American Jews
were able to win acceptance by making their religious affiliation less
of a national identity and more of a creed. And in some ways a crucial
question facing American Muslims today is what sort of syntheses they
will strike between their inherited traditions and the deeply
Protestant thought structures of American life.

There may be a good argument for the whole world to become
Protestants in this way, one way or another. Twentieth-century
America’s leading Catholic thinker, John Courtney Murray, argued that
we should think of the Constitution’s Religion Clauses as “the Articles
of Peace.” By this reading, we do not check our religious beliefs at
the door to the public square; rather we bring to that square a supreme
religious value–peace–which in turn makes tolerance a religious
obligation. As Murray wrote in his 1954 essay, “The Problem of
Pluralism in America”: “To speak of expediency here is altogether to
misunderstand the moral nature of the community and its collective
moral obligation toward its own common good. The origins of our
fundamental law are in moral principle; the obligations it imposes are
moral obligations, binding in conscience. One may not, without moral
fault, act against these articles of peace.” Murray’s conception still
leaves open the possibility of corporate truth in the familiar
pre-modern manner, but it subordinates it to a higher, equally
corporate, value.

One does not necessarily have to choose between Murray’s very
attractive conception of peace and Nussbaum’s very attractive
conception of equality to maintain a decent social and political order,
one which guarantees negative freedom from religious inequality and
positive freedom to develop one’s own religious (or non-religious)
life. What I am less sure of is whether either of those conceptions can
long endure entirely unmoored from their original anchorage in some
larger, call it metaphysical, truth with a capital T. Can these ideas
which ultimately are grounded in basic conceptions of the human person,
of society, and of God take root in societies–in the Middle East and
Asia–with very different basic conceptions of themselves engaging with
modernity in all its varied forms? The twentieth century offered just
the latest in a series of gloomy historical lessons in just how
murderous Truth-wielders can be. The question that remains for
liberals, and which Nussbaum has yet fully to answer, is whether the
truth-wielders can, in the end, be met and bettered without some other
Truths of our own.

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Yehudah Mirsky served in the State Department's human rights bureau in the Clinton Administration and is now a fellow at the Van Leer Institute and at the Jewish People Policy Planning Institute.

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