Liberty of Conscience: In Defense of America's Tradition of Religious Equality Book

Like other Nussbaum books, quite enjoyable and original. The take-way from the book is that the establishment and free exercise are based on notions of equality. The establishment clause ensures that no orthodoxy is imposed, to create in and out groups (essentially, the endorsement test in Lynch), as Madison said, all citizens are equal in the public square. The free exercise clause recognizes that generally applicable laws, enacted by a majority can sometimes unintentionally (or occasionally intentionally) burden religious minorities, and that equality demands an accommodation. Re-freshingly, Nussbaum praises the general traditions of religious liberty in America, calling on Europe to look towards American, traditions, especially in accommodation. The book also notes times in US history when America failed to uphold its traditions, in its persecution of members of the LDS and flag salute cases regarding Jehovah's witnesses (Gobitis). The book also warns of possible threats to our freedom of religion traditions, but that part of the book was more topical, and I think by nature less robust.

The book does a great job of giving the background and law of the famous line of religious cases, from Reynolds, Sherbert, Smith (which Nussbaum critiques), to Yoder. The summary of the facts and law are accurate, and the book provides some interesting and novel perspectives. In particular, Reynolds held that the first amendment did not protect early members of the LDS from criminal prosecution for polygamy. While Nussbaum's opposition to bans on polygamy is consistent with her generally libertarian premises, the book is also sympathetic in a historical sense. The book mentions that polygamy was justified by the idea that it would prevent abandonment of wives, and (at least in theory) all prior wives would have to consent to newer wives. The book also makes the point that the critics of polygamy at the time turned a blind eye to the cruelty of marriage under common law principles. Under the common law, after marriage, women lost their separate legal status and not generally own property or divorce. While this isn't a watertight argument for the legality of polygamy, these arguments are interesting and provide a more realistic context. Another surprising argument was Nussbaum's sympathy for catholic parochial schools. The book makes the point that generally schools were set up with a deeply favoring protestantism (an example of this was the recitation of the protestant version of the ten commandments), so in a sense catholic schools were set up as an escape from a majoritarian oppression. The book also argues that the liberal secular knee jerk response to separate church and state had its partial origins in an ugly and deep national anti-catholicism (Nussbaum discusses some interesting politics here as well, separating the radical right wing ultramontanists from most practicing catholics). The books treatment of these controversial issues is sympathetic and well-reasoned, and even though the reader might not always agree, the book always makes a compelling arguments which sometimes lead to surprising conclusions.

One scholarly part of the book I really enjoyed was the discussion of stoicism, and Roger Williams. Nussbaum is interested in the stoics (she is the editor of a series of English translations of the works of Seneca) and argues that the Framers and enlightenment were deeply influenced by the stoic linkage of dignity to moral autonomy/capacity. Nussbaum notes however, stoicism's belief in the moral autonomy and worth of individuals could not be translated into a protection for freedom of religion because the stoics believed that moral capacity was extremely robust, and therefore did need legal protection. It took Roger Williams to realize that one's conscience, or seeking of meaning in one's life should be respected for everyone and that it is inherently fragile, subject to oppression, especially by intolerant government. The book's portrayal of Williams is very appealing. Williams traveled amongst Natives, learning their language and their customs. When he was expelled for his radically tolerant beliefs, Williams set up Rhode Island to be tolerant of a wide range of religious beliefs and enshrined accommodation to exempt individuals from generally applicable laws when their conscience dictated otherwise. Williams drew from Plato, an analogy that the citizenry was like a crew on a ship, the captain could bind them to conduct against their will only if the ship was threatened. The book compares Williams's vision of toleration favorably with Locke's view (though Williams seemed to be disorganized and rambling compared to Locke), and argues that William's view is not based off of any religion but a moral understanding. Nussbaum uses this conception of conscience to help define religion. Surprisingly despite the many cases on the matter, few cases have addressed the definition of religion. Nussbaum argues that religion is not always tied to a belief in a deity (and cites for example, her own form of Judaism, that conceives of God as a rational order instead of personal deity), but in the use of our capacity to find meaning in life.