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Liberty of Conscience: The Attack on EqualRespect1

MARTHA C. NUSSBAUM

Martha C. Nussbaum is Ernst Freund Distinguished Service Professor of Lawand Ethics, University of Chicago, IL, USA

Abstract All modern nations face problems of religious toleration and

respect. Examining the US constitutional tradition of religious freeexercise and non-establishment, I argue that the core value in thistradition is that of equal respect for conscience, a value that militatesagainst all governmentally-created hierarchies or in-groups. I argue thatthis tradition is on the whole a helpful guide in thinking about such issuesmore generally. On the free exercise side, I argue for a doctrine ofaccommodation that gives dispensations from generally applicable lawson grounds of conscience. On the non-establishment side, I look at issuesof public displays, school prayer, and public funding, arguing that the keyquestion is whether the policy in question makes a statement of

endorsement or disendorsement, creating preferred and dispreferredclasses of citizens. I conclude by examining the major threats to thetradition 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 GodSelfe) only to Your Selves. (Roger Williams, letter to the Governors ofMassachusetts and Connecticut 1670, in Williams, 1988, vol. II)

Equal liberty of conscience

Every year, at Thanksgiving, thousands of small American children dressup like Pilgrims. Grave in tall hats and buckled shoes, or starched bonnetsand aprons, they proudly act out the story of that courageous band ofsettlers who fled religious persecution in Europe, braving a perilous oceanvoyage and the harsh conditions of a Massachusetts winter all in orderto be able to worship God freely in their own way. Those who survived

feasted with the native inhabitants and gave thanks to God.

Journal of Human DevelopmentVol. 8, No. 3, November 2007

ISSN 1464-9888 print/ISSN 1469-9516 online/07/030337-21 # 2007 United Nations Development Programme

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Americans cherish and celebrate this story, but too rarely reflect on itsreal meaning: that religious liberty is very important to people, and that itis often very unequally distributed. The dominant majority in England didnot have to run risks to worship God according to their consciences. They

established an orthodoxy, an official church, which favored them andsubordinated others. In the England from which the Pilgrims fled, peoplewere not equal citizens, because their rights were not equally respected bythe government under which they lived. The Pilgrims were not expelledfrom England, as the Jews had earlier been expelled, but they were livingin a condition of subordination. Something very precious had beenwithheld from them, and it was to recover that space of both liberty andequality that they crossed the ocean in three small vessels.

The lesson of the first Thanksgiving is easy to forget. Indeed, the earlysettlers themselves soon forgot it, establishing their own repressive

orthodoxy, from which others fled in turn. People like exclusive clubsand orthodoxies that rank them above others. My mothers ancestors cameover on the Mayflower, and some of my relatives were obsessed withtriumphal genealogizing, as they marshaled the evidence that theybelonged in the exclusive and socially prominent Mayflower Society,while others did not. The Pilgrims quest for freedom, centuries later, hadbecome elite Americans quest for superiority. Nor was religious tolerationin a healthy state among the Pilgrims descendants, as the exclusion ofJews and Roman Catholics from local private schools, country clubs, lawfirms, and prestigious social events indicated. When I later married a Jewand converted to Judaism, the Pilgrims descendants did not applaud mychoice 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 ofindividuals and the health of the nation, it is very tempting to think thatorthodoxy is a good thing and that those who do not accept it aredangerous subversives. When people are afraid or insecure, when someunusual economic or political threat confronts their nation, respect forequality is even harder to sustain, and the comfort of an orthodoxybecomes even more alluring. It was in 1954 during the panic over the

Cold War and the nuclear arms race that Americans added the wordsunder God to the Pledge of Allegiance to the flag, which smallschoolchildren recite every morning in schools in many states: not onenation indivisible, with liberty and justice for all, but one nation, underGod, indivisible, with liberty and justice for all. The aim was todistinguish god-fearing America from godless communism, but the effectwas to denigrate atheists, agnostics, polytheists, members of non-theisticreligions such as Buddhism and Confucianism, and all those morestandard theists who do not like to think of God as playing favorites amongthe nations, taking America under his wing no matter what America has

been doing.

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All modern democracies are currently in a state of fear, and growingreligious diversity is one of the things that most keenly inspires fear. Just asin the nineteenth century America saw a panic about Catholic immigra-tion, and otherwise reasonable people hastened to demonize the entirety

of the Roman Catholic faith, arguing that Catholicism and Catholics wereincompatible with democracy, so too today we hear, in North America andespecially in Europe, the same sweeping and unsubtle arguments aboutIslam and Muslims. Just as Catholics could be well treated in the UnitedStates of the nineteenth and early twentieth centuries only if theypretended to be like everyone else, reciting Protestant prayers in schooland forgoing any public ceremonies that drew attention to religiousparticularity, so too, today, we hear the same strident demand thatMuslims should assimilate, which means stopping any practice that drawsattention to their difference from others. (Of course the same demand wasmade of the Jews in Europe in the eighteenth century, and it was as anti-Semitic as the more violent anti-Semitism of the nineteenth century, albeitmore polite in tone.) Fear of the different has been leading, as it so oftenhas, to a coercive homogeneity, and it is the homogeneity of fear, as wecling for dear life to the familiar, thinking that there alone resides ourhope 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 renewedcommitment to a long tradition of equal respect for conscience thatplayed a formative role in both European and American institutions, butthat is frequently honored more in the breach than in the observance renewed commitment to that tradition and to the governmental and legalpolicies that it entails.

What are those policies? I shall argue that equal liberty of consciencerequires giving citizens ample space to pursue their conscientiouscommitments, even when this involves giving them exemptions fromsome laws that apply to all citizens. Only what is called in the law acompelling state interest should ever be able to justify any diminution ofthat space. And I shall also argue, second, that liberty of conscience isincompatible with any type of religious establishment, even one that is sogentle and benign as to escape most peoples notice. Liberty of conscience

is not equal if government announces a religious orthodoxy, saying thatthis, and not that, is the religious view that defines us as a nation. Even ifsuch an orthodoxy is not coercively imposed, it is a statement that createsan in-group and an out-group. It says that we do not all enter the publicsquare on equal conditions; that one religion is the nations true religionand others are not.

In short, respecting liberty of conscience equally entails that the statemay not create a two-tiered system of citizenship by establishing a religiousorthodoxy that gives rights to others on unequal terms. As US SupremeCourt Justice Jackson put it in a famous opinion holding that Jehovahs

Witnesses may not be compelled to recite the Pledge of Allegiance in

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school (which their religion forbids, as a form of idolatry): If there is anyfixed star in our constitutional constellation, it is that no official, high orpetty, 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 anexception, 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 Sherbertworked in a textile factory in South Carolina in the 1950s. All theemployers in her town had similar policies for working hours. After MrsSherbert had been a good employee for many years, the policy changed,during a time of economic stress and competition. Instead of working five-day weeks, employees were now expected to work six-day weeks. Saturdaywas 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 wasreligiously forbidden to work on Saturday. She tried to find similar workelsewhere in the region, but all employers required Saturday work. Notsurprisingly, there was none who chose to close on Saturday and toremain open on Sunday, because most workers and managers wereChristian. Mrs Sherbert resigned and sought unemployment compensa-tion. She was denied by the state of South Carolina on the grounds thatshe had refused suitable work. She went to court, arguing that the statehad 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 madeconditional on a violation of a persons religious scruples: this was just likefining someone for Saturday worship. In other words, the denial ofbenefits was a violation of Mrs Sherberts equal freedom, as a citizen, toworship in her own way. Free exercise does not mean simply that nobodycan come and put Mrs Sherbert in jail for her non-standard religiouspractices. It means, as well, that the conditions of liberty must be the samefor all. The Court held that no person may suffer a substantial burden totheir religious liberty without a compelling state interest which clearlydid not exist in this case.

Workplace arrangements are always made for the benefit of themajority. The holidays observed, the work-days chosen, all are tailored tosuit the local majority; in this case Christian. There is nothing inherentlywrong with this so long as care is taken to prevent this convenientarrangement from turning into a fundamental inequality in freedom andrespect. The Free Exercise Clause, the Court held, guarantees that equalfreedom.

The Allegheny County Courthouse stands on public property indowntown Pittsburgh. In the late 1980s, the County set up two holidayseason displays. The first, inside the Courthouse, consisted of a creche(Nativity scene), donated by a local Roman Catholic organization, and

labeled to that effect. Placed on the Grand Staircase of the Courthouse,

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with no other displays around it, the Nativity scene bore a sign carriedby an angel above the manger saying Gloria in Excelsis Deo (Gloryto 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-footdecorated Christmas tree. At the foot of the tree was a message from themayor saying that the display was a salute to liberty. (In fact, themenorah is a symbol of liberty, since the holiday of Hanukkahcommemorates the Maccabees courageous rebellion against politicaloppression. It is difficult to say whether a Christmas tree represents liberty,but it is such an all-purpose symbol that the mayor can probably declarethis 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 Clauseand the second did not (County of Allegheny v. ACLU, 1989). The crucialquestion they asked was whether each display communicated the messagethat the county was giving its endorsement to a particular set of religiousbeliefs and practices, thus threatening equality. The first display seemed tothe majority to communicate such an endorsement: the religious Christiandisplay stood alone, in a position of special prominence and honor. Thesecond display was different: the fact that more than one religion washonored, and that the theme connecting the tree with the menorah wasthat of liberty, a theme that could include all citizens, whatever theirreligion or non-religion, meant to at least the Courts center that thepeople of Pittsburgh would not be likely to perceive the combineddisplay of the tree, the sign, and the menorah as an endorsement ordisapproval of their individual religious choices.

We can grant that this is a difficult case to decide, and we can evendiffer about whether it was correctly decided, while yet agreeing about theimmense importance of the principle involved. Some religious symbols,set up by government, threaten the equal standing of citizens in the publicrealm. 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 adelicate matter, requiring great sensitivity to a variety of contextual andcultural factors. They also show us, however, that all is not well justbecause no overt violence occurs between members of one religion andthose 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, isthat there is also violence in the subtle assault on equal dignity thatconsists in being told that you are not a fully equal citizen because of yourcommitment to your religion. Europe and the United States plumethemselves on their respect for pluralism and their civilized behavior

toward religious minorities: and yet, problems like this occur all the time.

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Until we really counter these more subtle threats and commit ourselves todeveloping democracies that are really places of equal respect, especiallyequal 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-centurythinker about religious pluralism, who founded the first colony in whichgenuine religious equality obtained, called this subtle violence toconscience soul rape (Williams, 1644, p. 219). We need to think hardabout 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 isgoing to criticize, to begin at home. I believe that the nations of Europehave a lot of the same issues to contend with, and in a way they are at adisadvantage, because they have been coping with religious difference fora much shorter time and have had less time to develop the political andlegal resources necessary to deal with it well. Of course difference wasreally present in Europe all along, since the Jews were always around, aswere many other minorities, but the Christian majority was so secure thatit was possible to avoid lengthy confrontation with the issue, untilrecently. From at least 1640 on, by contrast, the American colonists knewthat they had to learn to live together on terms of mutual respect if theywere going to survive at all, and this was quite helpful in getting people offtheir high horse toward genuine cooperation. I shall not speak at all,today, of the legal and political traditions of nations outside the UnitedStates 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 nationsof Europe and North America, as we impugn the religious fanaticism ofothers while neglecting the very large planks in our own eyes, in the formof 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 beinghas 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 muchinfluenced by ancient Greek and Roman Stoicism, and conscience is aclose relative of the Stoics idea of a power of moral choice.) Conscience isin each and every human being, and is present equally in high and low,slave and free, Protestant and Catholic. This conscience is deserving ofprofound respect and reverence. Even when it is going wrong, it is a majorsource of our dignity in the world, and it ought to be respected byindividuals, 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

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capabilities are so invulnerable, so rock-hard, that they cannot be damagedby anything that the world does, so it really does not matter what laws andinstitutions do to them. A slave is always free inside, a cruel tyrant cannotdestroy a persons true moral freedom. The seventeenth-century American

thinkers who appropriated Stoic ideas in a Protestant context thoughtotherwise: the capability in question is a fragile thing. What the world doesto 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 defendinghere, compared the first form of damage with imprisonment and thesecond form with rape. And it is soul rape, he went on, whenever somepeople set up their own religion as the orthodox one and deny equalliberty 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 distinctionbetween internal and combined capabilities: people may have the internalcapability of conscience and yet not fully have the combined capability,because of political and legal restrictions.) To respect human beings istherefore to protect that sort of space, equally and impartially, for each andevery one of them. He expresses indignation that someone that speakesso tenderly for his owne, hath yet so little respect, mercie, or pitie to thelike consciencious perswasions of other Men Are all the Thousands ofmillions of millions of Consciences, at home and abroad, fuell onely for aprison, for a whip, for a stake, for a Gallowes? Are no Consciences tobreath 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, andhe finds it wherever unequal restrictions on liberty of conscience are to befound. In my epigraph, he writes that the governors of two colonies thathad legally established official religions say that they are in favor of libertyof conscience but in actuality they want it only for themselves. RhodeIsland, the colony he founded, proclaimed complete and equal liberty forall the people who were unequal elsewhere: Baptists, Quakers, Catholics,Jews, native Americans (whom Williams particularly befriended and whoseland claims he zealously defended), even Muslims, who were not actuallypresent in Rhode Island so far as I can discover, but whom he included in

his theory, and even, most surprisingly, atheists, who were not defendedby other seventeenth-century philosophers writing on this topic.

In a way that strikingly anticipates the arguments of John Rawls in thetwentieth century (Rawls, 1996), Williams argues that protecting liberty ofconscience equally for all citizens does not mean that public institutionsmust be devoid of moral content. We can, he argues, agree about andoverlap in a shared moral space, while disagreeing about the ultimatereligious truths to which moral truths are, for many people, very closelyconnected (Williams, 1644, pp. 398399). Political institutions have amoral nature, but they express their moral ideas in a way that is separate

from a theological or religious grounding what Rawls calls a

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freestanding way (Rawls, 1986, pp. 1213). They thus express, in theirvery abstemiousness, an ideal of equal respect for citizens.

It would be a long matter to trace the influence of these ideas on theframers of the US Constitution. Suffice it to say that, directly and/or

indirectly, these ideas gradually prevailed in the colonies, and the mainarchitect of our Bill of Rights, James Madison, had views very similar tothose of Williams. Madison was a particularly keen opponent of all formsof religious establishment, on equality grounds, as we shall shortly see.After a lot of wrangling, the text that emerged stated that Congress shallmake no law respecting an establishment of religion, or prohibiting thefree exercise thereof (US Constitution, amendment 1). Although at firstthe provision was binding only on the federal government, amendmentsadded after the Civil War made it binding on state and local government aswell.

The modern constitutional consensus: free exerciseaccommodation

What does it take to defend religious liberty in a truly even-handed way?One philosophical tradition, beginning with Locke (who wrote 50 yearsafter Williams), holds that it takes two things only: first, laws that do notpenalize religious belief and practice; and, second, laws that are fair,setting up the same conditions for all citizens in matters that touch ontheir 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 achurch: a law that says otherwise is a covert form of unfairness to RomanCatholics. If it is permitted to immerse oneself in water for the sake ofhealth or recreation, then it ought to be permitted to immerse oneself inwater for the sake of baptism. Laws that say otherwise are unfair toBaptists. But that is all that fairness to minorities requires: to give themspecial dispensations of any kind is unnecessary and wrong. If they do notwant to obey some law on account of religious objections, they will justhave to pay the legal penalty (Locke, 1689, p. 48).

Lockes position has modern defenders on the US Supreme Court, inparticular Justice Antonin Scalia, who is prepared to strike down laws thatexpressly discriminate against minorities, but who opposes any specialaccommodations of their practices. For example, he favored striking downan ordinance in the city of Hialeah, Florida that made animal sacrificeillegal, on the grounds that it was clear that the aim of the ordinance wasto drive Santeria worshippers out of the city (Church of the Lukumi

Babalu Aye v. City of Hialeah, 1993). What made the ordinanceproblematic for the Lockean was that the food industry was permitted tokill animals, often in far more painful ways, and it was only the religiouspractices of the Santeria worshippers that were made illegal. JusticeSamuel 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

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denied the right to wear beards, which this particular group of Muslimsbelieved religiously required. Alito pointed out that the police regulationallowed non-religious people with skin allergies to keep their beards, so ifthat 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 orderto penalize Muslims or to drive them out of the police force; it just had theincidental 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 extensionof it is not quite enough. This tradition reasons that laws, in a democracy,are always made by the majority. They express majority ideas ofconvenience, and they will incorporate the religious preferences of the

majority. In Christian nations, for example, Sunday will be the day off fromwork, because the majority religion requires rest on a Sunday. Such laws,even if they do not involve any hostility to minorities, are apt to beheedless, not noticing the special burdens that minorities have to face.Already before the war of independence, the colonists had become used tosuch problems. Quakers refused to take off their hats in court, althoughthe law required this. Jews refused to give testimony on a Saturday whenserved with a subpoena. Both Quakers and Mennonites refused requiredmilitary service.

The position that emerged was one that favored special exemptions insuch cases. In a famous letter to the Quakers written shortly afterIndependence, George Washington, the first US President, said: I assureyou very explicitly, that in my opinion the conscientious scruples of allmen should be treated with great delicacy and tenderness: and it is mywish and desire, that the laws may always be as extensively accommodatedto them, as a due regard for the protection and essential interests of thenation may justify and permit (McConnell et al., 2006, p. 42). He did notrequire them to perform military service, and he also did not ask them, asLocke would have, to pay the legal penalty. Similarly, Jews were notrequired 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 ina criminal case, when he protested that his information about the identityof the criminal came to him in the confessional. The judge, a Protestant,reasoned that to require a priest to divulge this information, orto penalizehim for not doing so, would effectively abolish the sacrament of theconfessional, and thus would impose a very severe burden on all Catholics(People v. Philips, 1813). (The Roger Williams idea of soul rape runs likea powerful current through all these opinions.)

It was on account of this tradition that Adell Sherbert got herunemployment compensation. The Supreme Court reasoned that impos-

ing such an unequal burden could be done only if the state could show

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what they called a compelling interest in the uniformity in question forexample, by showing that peace and safety were at stake. That was not thecase here. During the Vietnam War era, moreover, the traditional idea ofreligiously based accommodation was extended to include many people

whose conscientious refusal to fight did not stem from anything like atraditional religious belief or practice, but simply from their ownconscientious 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 Americandrug use: the use of peyote, a drug illegal under the applicable state law, inthe 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 wasoutraged; two years later a law (the Religious Freedom Restoration Act)was passed by Congress that restored the more protective traditionthrough legislation. The Supreme Court then struck that law down on theground that it exceeded Congresss power (City of Boerne v. Flores).Nonetheless, parts of the law remain in force, and by now Congress hasrighted the most egregious imbalances, legalizing the sacramental use ofpeyote. Many states, meanwhile, have passed protective legislation of theirown that restores the space for religiously grounded accommodations orexemptions. By now, even the Court seems to be back on track. In the pasttwo years, in two unanimous decisions, prisoners belonging to minorityreligions won the right to opportunities for religious practice similar tothose already extended to Christians; and a small Brazilian sect won theright to use a hallucinogenic tea called hoasca in its ceremonies (Cutter v.Wilkinson, 2005; Gonzalez v. O Centro Espirita Beneficente Uniao DoVegetal, 2006). (This sect did not have the political clout of the NativeAmericans, so it was unable to move Congress: this is why it is soimportant for courts to be ready to intervene, as the new Chief JusticeRoberts stated in his majority opinion in the drug case.) In that same case,during oral argument, Justice Scalia announced that we can makeexemptions for religious minorities without courting anarchy, something

that seems to be a big concession, and perhaps an indication that he isgoing over to the tradition he had previously opposed. Analytically, thecases do not really go beyond Alitos modest extension of the Lockeanposition. But they sound a promising note for the future.

Europe today is in most respects Lockean. Since the eighteenthcentury, the dominant tradition has always been one of religious freedomcombined with assimilation. As I shall discuss later, the French schooldress code imposes special burdens on minorities, and would almostcertainly be unconstitutional under the tradition I have described. So toowould 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

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terms of fully equal respect means allowing them plenty of space to livethe way their own conscience dictates, even when that seems prettystrange 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 personand the persons equality. I think that Europeans should at leastcontemplate the tradition I have described, and see what they think of it.

The modern constitutional consensus: non-establishment withequal respect

As I said, the liberty-of-conscience tradition quickly became skeptical ofany sort of religious establishment, on the grounds that it is soul rape toimpose any sort of orthodoxy on the striving individual conscience.

Establishments were worst when they threatened liberty, penalizingpeople for non-orthodox worship, or forcing them to affirm orthodoxsentiments that they might not believe, or attaching conditions of religiousorthodoxy to a persons civil rights or ability to hold office. It was quicklyunderstood, however, that even an apparently benign establishmentfostered inequality, by making a statement that the government of thenation endorses a particular brand of religion. This endorsement is at thesame time, inevitably, a disendorsement, creating an in group and an outgroup. As James Madison said, [A]ll men are to be considered as enteringinto Society on equal conditions, and even a non-coercive establishment

violates that equality (Madison, 1785, in McConnell et al., 2006, pp. 4953). Madison was speaking, in 1785, in opposition to a proposal to tax allcitizens of Virginia for the support of the established Anglican church.According to the proposal, citizens who were not Anglicans would bepermitted to divert their tax payments to their own churches. Nonetheless,Madison thought that the bare announcement that the Anglican Churchwas the state church created ranks and orders of citizens. In 1984,discussing the US Constitutions ban on religious establishment, JusticeSandra 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 standingin the political community Endorsement sends a message tonon-adherents that they are outsiders, not full members of thepolitical community, and an accompanying message to adherentsthat they are insiders, favored members of the political commu-nity. Disapproval sends the opposite message. (Lynch v.

Donnelly, 1984)

According to Justice OConnors very helpful analysis, the right question toask of any potentially problematic policy in the area of religiousestablishment is the following one: would an objective observer,

acquainted with all the relevant historical and contextual facts, view the

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policy in question as one that makes a public statement of endorsement ordisapproval, sending a message of inequality? With this idea in mind, let usbriefly 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 religiousobservances: prayer, Bible reading, and so forth. Invariably, theseobservances were Protestant in character, and people did not even noticehow unfair they were to Catholics. Bible readings were from the KingJames Version, the Ten Commandments were cited in their Protestantversion, and so on. When Catholics protested, they were not well treated:Catholic children were often beaten for refusing to say the Protestantversion of the Commandments. By the mid-twentieth century, thosebarbarisms had been rejected, and people sometimes even allowed a

choice among versions of the Bible, but there was still an implicit rejectionof 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 wouldbe chosen to lead it each day, and it would be broadcast to all classroomson the public address system. Sixteen-year-old Ellory Schempp, a verybright and thoughtful young man who is now a distinguished researchphysicist, thought about this custom and considered it was probablywrong and unconstitutional. He decided to challenge it. On his day to leadthe 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. Schempphimself was a Unitarian, and still is; he was just making a point about thestatement of exclusion made by the school policy.) Immediately the schoolprincipal subjected Schempp to disciplinary action, and this sameprincipal wrote to all the universities to which Schempp had applied,telling them not to admit this subversive character. Schempp borrowed hisfathers typewriter and typed a letter to the American Civil Liberties Union,enclosing $10 that he had saved up from his allowance, and asking them totake his case. (This is one of the rare cases where a child is not simply theoccasion 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 thePennsylvania school law mandating Bible reading was declared uncon-stitutional (Abington School District v. Schempp, 1963). I think it is nothard to see the wisdom in that decision, and it is a very good thing thatsmall children from non-standard religions, or with no religion, do nothave to face this coercive pressure. Hinduism and Buddhism are the twofastest-growing religions in the United States, and the custom Schemppchallenged made a strong statement that children from these religions, aswell 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

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another one that came up only last year, and that was extremely divisive.The Ten Commandments seem to many Americans a very important signof Judaeo-Christian traditions that many Americans cherish. At oneextreme, nobody thinks that it would be right to require affirmation of

the Ten Commandments as a condition of public office, as once was donein several states. At the other extreme, nobody thinks it objectionable thatthe building in which the United States Supreme Court sits contains asculpture of Moses holding the Ten Commandments along with a largenumber of other representations of famous lawgivers throughout history.This seems OK to everyone, because the connecting theme of all thesculptures is clearly law, or law and its place in history, and no specialprominence is given to Moses. No reasonable observer would concludethat the sculptures make a statement that non-Judaeo-Christians are notfully equal members of the community.

On those extremes, there is agreement. In the middle, there is lots ofterrain for disagreement. The two cases that came before the Court lastyear were as follows. In McCreary County, Kentucky, displays of the TenCommandments were required by law in all courthouses and all publicschools. The legislature announced that its purpose was to affirmAmericas Judaeo-Christian religious heritage. When the displays werechallenged by lower courts, they grudgingly added some other parts to thedisplay, setting the Declaration of Independence and other historicaldocuments beside the religious text, saying that their purpose was now toshow the formative role played by the Ten Commandments in Americaslegal history. (This is a rather absurd claim, since the commandments areeither so religiously focused that they suggest no direction for law in apluralistic society, or so general Thou shalt not kill that theysuggest no specific or particular direction that a lawgiver could have founduseful.)

Meanwhile, my other case; the state of Texas has for 40 years had onits statehouse grounds a large monument including the whole text of theTen Commandments, in a version prepared by an interreligiouscommittee consisting of Protestants, Catholics, and Jews. It was donatedby a private organization, and it is among many other monuments donatedby 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, Texascowboys, Texas children, Texas pioneer women, Pearl Harbor Veterans,the Statue of Liberty, Korean War veterans, World War I veterans, disabledveterans, Texas peace officers, and a few others.

In separate cases, both of these displays had been foundunconstitutional by lower courts. The task before the Supreme Courtwas to resolve the two cases. Inevitably and rightly, the analysis focusedon issues of endorsement and equality. The Kentucky display was struckdown, because it conveyed the message that Judaeo-Christian religion is

preferred and other sources of value and meaning are dispreferred

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(McCreary County v. American Civil Liberties Union, 2005). (I shouldadd that it was the Protestant version of the Commandments, so themessage really was that Protestant Christianity is preferred.) The Texasdisplay was upheld by a very narrow margin (Van Orden v. Perry, 2005).

That case, like the Pittsburgh case, is a difficult one, because the analysisrightly turns on subtle issues of context and perception. I think it wasrightly decided, but one could also argue the other way. What isimportant is to see how different it is from the Kentucky case: the state issimply allowing different groups to make their own statements, and isnot itself taking sides. Justice OConnors endorsement test, the legalversion of James Madisons much earlier insights, gives good guidanceand asks all the right questions.

Finally, school aid. Tax money may not advance a particular religionover 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 itwould be unfair for the state to treat religion with special disfavor. Giventhat the modern administrative state is so vast, entering into so manyaspects of citizens daily lives, it is very difficult to withhold all state aidfrom religion without giving it horrible disadvantages. Suppose thatchurches did not have access to the public water supply, or the publicsewer system. Suppose that a burning church would not be aided by thefire department, on grounds that the state cannot aid religion. Thesethings look profoundly wrong, and nobody even suggests that this is theway things should be. Why? Because we see that equality is at issue: if thesepolicies were adopted, the life, health, and safety of religious peoplewould be at unequal risk, and the state would be making a statement thattheir safety is less important than that of the non-religious. So, that is theagreement at one end of the spectrum. At the other end, most peopleagree that it would be terribly wrong if the state of Texas, say, declared thatit would give tax funds only to religious schools.

Once again, however, there is a lot of terrain in the middle, and it hascaused bitter division in America, particularly about various forms ofpublic aid to religious schools. The division is so bitter in large partbecause of anti-Catholicism. Most of the religious schools in America areCatholic 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 notget water, or the services of the fire department and the police. But whatabout a state policy that says We will pay for the transportation of allchildren to whatever school they attend, on public buses? That policy waschallenged in the late 1940s, a time of intense anti-Catholicism. In afamous 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, foranything about the religious school itself (Everson v. Board of Education,

1947).

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The controversy has continued. Can public money be used to pay forspecial education teachers for children with disabilities, or specialremedial needs, teachers who would travel from school to school, visitingthe 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 variousvoucher programs, which give parents in a failing public school district,under certain circumstances, some cash that they can use to pay theirchilds tuition at a private or parochial school if they choose. Thesepolicies are problematic, because they threaten to undermine the publicschools. On the other hand, if they are confined to special cases where theschools have already been nationally declared to be a disaster area, thepolicies 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 aidexpresses government favor for religion or a particular religion, orwhether, by contrast, a given refusal of aid expresses actual disfavor forreligion.

So far in this talk I have not used the words separation of churchand state, so often used, especially by the left, in this connection. Myavoidance of these words is deliberate. This slogan was, in fact, not partof our original constitutional tradition. It is not to be found in ourConstitution, and none of the framers used it; they preferred thelanguage of liberty and equality. The slogan arose in the mid-nineteenthcentury during the panic over Catholic immigration, and it expressedpeoples fear that the Catholic church was going to take over Americaninstitutions (Hamburger, 2002). To some extent, the words can riseabove their tawdry history, and in the mouths of some thoughtfulliberals they do express admirable values of liberty and equality. But theidea of separation does not direct thought well. Total separation ofchurch from state, if we think of it literally, is both impossible andundesirable. We do not want to deny the church the benefits of the firedepartment and the police. We also do not want to deny priests and

ministers the right to run for office, although at some times in ourhistory people have held that view. How much separation is a goodthing, 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 morefundamental values, in particular those of equal standing in the politicalcommunity and equal liberty.

Once again, I think that this area of US legal thought is a valuable onefor Europeans to ponder. Many issues that are emerging only now inEurope (the crucifix in the Italian public schools, the word Christian inthe draft European Union constitution) have been pondered thoroughly

in this tradition, and the traditions analytical framework seems like a good

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one to apply to the European scene as well, since Europe, too, endorsesthe basic idea of equal liberty of conscience.

The attack on the tradition of equal libertyThe tradition I have praised has many enemies, but we can reduce them allto two, both rather common in decent modern liberal democracies, and itis with these assailants that I want to conclude. Neither is a double-dyedvillain, but both, I believe, fail to understand something essential aboutwhat equal respect for persons requires. The first opponent I shall call theestablishmentarian. This person thinks that good order and public safetyrequire a public commitment to a religious orthodoxy, a dominantreligious tradition. Life with so many different religions is too chaotic, toofraught, 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, andanyone who wants to live in peace among us has to acknowledge this andassimilate to it.

Now of course the view I defend requires a nation to take a moralstand, saying this is who we are. Our freestanding political principleshave a moral content, prominently including the idea of equal respect. Butthe establishmentarian says that we must go further: we must say This isthe primary religion of our community.

Establishmentarians are sometimes overtly malign: thus, in seven-teenth-century America, the Puritans in Massachusetts imprisoned or

expelled people whose beliefs did not suit the dominant norm. Innineteenth-century America, as I have mentioned, little Catholic childrenwere beaten, sometimes quite savagely, if they would not recite theProtestant version of the Ten Commandments in the shared publicschools. Mormons and Jehovahs Witnesses were assaulted and killed insubstantial numbers.

Today, however, the malign sort of establishmentarianism is reason-ably unpopular in Europe and North America, and a more cozy apparentlybenign form has taken its place: the form that says we need only be clearabout who we primarily and centrally are, and then the different can live inpeace among us. This is the view that I have targeted all through my talk. Itis a view held by many Europeans, those who think it important to assertthat the European Union is fundamentally Christian, those who like toretain crucifixes in Italian public school classrooms, and many others. InAmerica, it is the view of the religious right, of George Bush and, on theSupreme Court, of Justices Scalia and Thomas. Justice Scalia has recentlysaid explicitly, in his opinion in the Ten Commandments case, that ours isbasically a monotheistic nation, and that it is perfectly all right for publicmonuments 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 non-

theism, as well as atheism and agnosticism. The slightly more subtle view

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of the late Chief Justice Rehnquist was that it was never right to favor aparticular religion or religions, but it would be a very good thing, andconstitutionally 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 ofothers. Even a benign establishmentarianism can have quite far-reachingeffects disadvantageous to minorities. It can support policies that usetaxpayer money to fund schools only of a particular religious sort, policiesthat allow religious tests for public office, and so on. But even when anestablishment does not do this as with the one in Virginia that JamesMadison criticized, which allowed people to opt out of the tax donation tothe established church as Madison said, such a policy nonetheless, just

by announcing a preferred state religion, tells minorities that they do notenter the public square on equal conditions. It asks them to live on termsof permanent second-class citizenship and a certain degree of humiliation,as public ceremonials announce again and again that the outsiders are notreally equal.

It is easy to frown on this opponent at least for Americanintellectuals, for whom these views are associated with the religious right,whom American intellectuals are accustomed to think of as very differentfrom themselves, and not very bright. It is less easy to frown on my secondopponent, who is found, mostly, on the left. This opponent I shall call the

anti-religionist. This position, as you shall see, is the obverse ofRehnquists. The anti-religionist thinks that all religion should bedisfavored in the public square not for reasons of equality, or liberty,but because he or she thinks religion somewhat embarrassing, a relic of apre-scientific era, and a source of nothing but trouble. We can best buildlasting democracies, thinks the anti-religionist, if we discourage religionand build on secular scientific rationality. Of course we should not repressreligion or legally penalize religious people or religious observance. Butwe should certainly discourage it, and there is absolutely no reason tobend over backwards to give it space to unfold itself.

Anti-religionism is official policy in France, although in a form thatdoes not valorize science as later forms tend to do. It is the semi-officialintellectual creed of post-Nehruvian India, where one would not findmany progressive intellectuals, whether Hindu, Muslim, or Christian, whowould not speak slightingly about religion in much the way that Nehrudid, treating it as a relic of the past that holds India back from her greatestachievements. It was the view of the great American philosopher andeducator John Dewey, whose influence played a key role in the drive todefund religious schools. It is a view that many individual intellectualsexpress 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

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harsh toward minority religions. The religion of the majority does not lookparticularly religious, because it is so much a part of dominant laws andcustoms that it does not stand out. Dewey had few objections toProtestantism, because Protestants went to the public schools: after all,

why should they not? Those schools were basically Protestant schools, withProtestant prayer and so on. Protestants did not make a fuss about wantinga different version of the Ten Commandments: after all, the one that wasubiquitous was already their version. Protestants did not ask for specialdispensations regarding days of work: after all, they already had Sundayoff. So Protestants could be treated as if they were non-religious already.They fit in, and did not ask for anything on religious grounds. Anti-Catholics liked to add that Protestantism shares the anti-religionistscommitment to the autonomy of each persons reason, so the religiousaspect of Protestantism could be seen as a slightly older form of non-religion.

Catholics were another matter: they had these outlandish hierarchies,these nuns and priests in odd costumes, these garish ceremonials; andthey made a fuss about everything, wanting their own Bible, their own TenCommandments, their own schools even. So Dewey and his studentsconducted studies of Catholic communities and wrote that Catholics arenot capable of democracy; that they are servile and submissive. It was oneof Deweys students, Paul Blanshard, who wrote the extremely popularand influential book American Freedom and Catholic Power (Blanshard,1949), which told Americans that the power of the Catholic church was asgreat a threat to American values as global communism. So, the firstproblem with anti-religionism is that anti-religionists often do not play fair,and anyone who wants to look different gets worse treatment than anequally religious person who looks like the dominant norm somethingthat has meant that anti-religionism has typically been quite unfair to Jewsand Muslims, and is so in France today. Jewish yarmulkes and Muslimheadscarves are forbidden in schools along with large Christian crosses:but it is rarely mentioned that this is an utterly unequal burden, sinceJewish men and Muslim women regard the forbidden articles of dress asreligiously obligatory, while Christianity does not oblige Christians to wearlarge crosses.

The second problem with anti-religionism is that it is likely to bestingy with accommodations. Because it thinks that religion is fundamen-tally not very important, it is not likely to go out of its way to give peopledispensations from laws of general applicability on grounds of conscience.Drug laws, laws about work days, all of these will be arranged to suit theconvenience of the modern administrative state. If the anti-religionistthinks a particular war wrong, then he or she may uphold a limited right toconscientious objection in wartime. But not on grounds of conscience inthe traditional sense. Anti-religionists simply do not have very muchrespect for the capability of conscience, not in so far as it exercises itself in

a religious way.

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Third and most basic: even a fair anti-religionism is not compatiblewith a thoroughgoing commitment to equal respect. Anti-religionismsays, here we are, the enlightened ones philosopher Daniel Dennettcalls himself and his fellow anti-religionists the brights (Dennett, 2003,

2006). We brights see more clearly than you benighted people overthere. 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 thatnobody, not the anti-religionist either, has the ultimate solution toquestions about the meaning of life and death that have plaguedhumanity ever since humanity began to exist. If scientific anti-religioniststhink they do have the answer in the form, for example, of a reductivephysiological account of the life and death of organisms we shouldprotest that this is an answer so drained of mystery and genuine curiositythat it is this answer, not the traditions of the religions, which demeanshumanity and compromises the project of building a rich multifacetedstate based on respect for humanity. (The framers of the UniversalDeclaration of Human Rights agreed not to base the declaration on anyspecific religious or ethical comprehensive doctrine, but they did need toagree, they thought, on a moral view of human dignity that made humanbeings not mere bundles of matter, not mere objects to be used for theends of efficiency.)

Nehru and John Dewey, of course, were not the scoffing sort of anti-religionist, and it insults them even to mention them together withDennett. But then they should have understood that, as Dennett neverwould or could, the complex mysteries of human life call forth manydifferent types of committed searching from the internal capability ofconscience in human beings, some forms being non-religious and somereligious andthat the capability with which people conduct this searchis worthy of the greatest respect, and of fully equal respect, whether theform the search takes is religious or non-religious. On his night table onthe day of his death, Nehru had copied out, in his own hand, these linesfrom Robert Frost: The woods are lovely dark and deep,/ But I havepromises to keep,/ And miles to go before I sleep,/ And miles to go before Isleep. That a man with such a profound sensitivity to the depths of thehuman conscience and its strivings should have so often denigrated the

religious forms this striving took in the vast majority of his countrymen is asad fact, one to be explained, perhaps, by the strange confluence of elitismand Marxism in his education. In any case, we should follow Nehruspoetic soul and not his cramped vision of his fellow citizens, as we try tocultivate the humanity in each of us that will sustain our own developingcommitment to democracy.

The human internal capability of conscience is a delicate andvulnerable thing. It needs support from laws and institutions. Because itis worthy of equal respect, it is worthy of equal support. An approach topolitical principles based on the idea of human capability should learn

from the tradition I have described, and reject both establishmentarianism

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and anti-religionism in order to be fully respectful and fully fair to allhuman beings.

Notes

1 This paper is an overview of the argument of Nussbaum (forthcoming 2008), whichcontains 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 Aguilarholding was understood to make similar programs of specialeducation for children with disabilities unconstitutional if they involved public moneybeing 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).

References

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.

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Nussbaum, M.C. (forthcoming 2008) Liberty of Conscience: In Defense of AmericasTradition 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 RogerWilliams, 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.

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