Comment on Liberty of Conscience: In Defense of America's Tradition of Religious Equality. By Martha C. Nussbaum, 406 pages, Basic Books.
In Sophocles' tragedy Antigone is caught between her religion and her state. After her brother is killed assaulting the city, her uncle Creon forbids her to bury him. But according to the tenets of her faith, if Antigone does not bury her brother, she will have disobeyed the gods and forfeit her own afterlife. Eventually, she kills herself.
Martha C. Nussbaum tells the ancient Greek story in Liberty of Conscience, her grand and penetrating discourse on religion and American law, to illustrate how an unbending state can impose a "tragic burden" on a member of a religious minority. This demonstrates two of Nussbaum's prodigious strengths. As a teacher and scholar of law, philosophy, and religion at the University of Chicago, she brings the insights of each discipline to bear on the others. And because she's attuned to the "springs of conscience" that well up from faith—Nussbaum left the Episcopal Church for Reform Judaism when she married—she can analyze some of the Supreme Court's recent jurisprudence on religion with sympathy rather than disdain for the enterprise of accommodation. She's no atheist, she's no evangelical, and she's still worried.
As Nussbaum unpacks the Court's interpretation of the Constitution's free exercise and establishment clauses, her premise is that "equality is the glue that holds the two clauses together." A longtime enemy of elitism in a variety of guises, she fiercely resists the power of a majority religion, aided and abetted by the state, to create an in-group while subordinating out-groups. Nussbaum anchors the countervailing equality tradition in the writings of Roger Williams and James Madison. Williams, who had extensive friendly dealings with the Narragansett Indians, wrote into the charter for the Rhode Island colony a right to freedom of conscience that shocked the British. He coined the phrase "soule rape" for the limiting of religious expression that does not violate civil law or harm others.
Nussbaum draws a straight line from Williams' fusion of respect and fair play for religious groups to John Rawls' vision of people choosing the basis of their common governance without knowing where they will be situated in the society that results. Williams and Rawls also agree that the state has a moral foundation that is religious for some people and nonreligious for others. Nussbaum finds this construct of "overlapping consensus" to be "a much more helpful idea to think with than the bare idea of 'separation' " between church and state. She lauds Madison for seeing tax support for religion as an inevitable source of hierarchy and favoritism. But she does not read the establishment clause as erecting a wall that discounts the contributions of religion; this she sees as another "type of unfairness."
How does Nussbaum apply her equality principle to Supreme Court jurisprudence? She thinks the Court avoided the trap that snared Antigone with a 1963 ruling in favor of Adell Sherbert, a Seventh-day Adventist fired from her mill job for refusing to work on Saturdays. According to Justice William Brennan's test, a job requirement violates the right to free exercise when it imposes a "substantial burden" without being justified by a "compelling state interest," or being narrowly tailored to achieve such an interest. This is the right standard, Nussbaum argues, because it treates religious outliers as the equals of the majority, who weren't being asked to work on Sunday, their day of rest.
In 1990 the Supreme Court moved away from the equality principle in a case that rejected the claim of Al Smith, who fought his denial of unemployment compensation after he was fired for using peyote during ritual Native American worship. Equating accommodation with anarchy, Justice Antonin Scalia's majority opinion declared that religious beliefs had never been held to excuse compliance with a valid law. Nussbaum turns to another conservative, the scholar and judge Michael McConnell, to fend off Scalia's argument on the history and the merits. She notes approvingly that with prodding from Congress, the Court seems to be heading back toward acknowledging, as Scalia himself later put it, that "you can make an exception without the sky falling."
Thus far, Nussbaum's equality principle has served as a useful prism for a familiar point of view. The book takes a more surprising turn when Nussbaum examines an 1874 ruling in which the Supreme Court rejected polygamy as an expression of Mormon duty. Nussbaum sides with the Mormons, primarily, it seems, because their opponents hypocritically kept their own wives bound by unequal marriage laws. Polygamy looked pretty good compared to other marriages of the time, and that's good enough, Nussbaum argues; the more obvious point might be that neither type of marriage deserved constitutional protection. She gives a scant few sentences to the contemporary sex-equality argument against polygamy and dismisses as fear-mongering "Under the Banner of Heaven," Jon Krakauer's disturbing 2003 book about women and girls exploited by extremist Mormon sects. ("Krakauer is known for writing about mountaineering and appears to have no credentials in the area of religion," Nussbaum sniffs in a footnote—a strange note for an anti-elitist to sound.)
But if Nussbaum is a bit off-key in her defense of the Mormons, her moral clarity snaps back into focus when she turns to the establishment clause clashes of the last half century. The Supreme Court has gradually turned this area of law into a tangle of not-quite-abandoned constitutional tests. Nussbaum is particularly good at showing how both liberals and conservatives have contributed to the snarl.
In 1984 a majority opinion by Justice Brennan struck down a New York City program that brought remedial teachers into sectarian schools to teach low-income children. Nussbaum stands with Justice Sandra Day O'Connor, casting the New York case as the flip side of Antigone's tragedy. The students could express their faith, but doing so deprived them of a public benefit available to everyone else. The Court went on to overrule the 1984 precedent, and Nussbaum's equality principle illuminates why this was the better call.
Nussbaum also looks closely at a difficult pair of 2005 rulings in which the Supreme Court said no to a Ten Commandments display planned for a Kentucky courthouse, while allowing a less obtrusive Texas monument to remain. In the majority for the Kentucky case, O'Connor and Justice David Souter emphasized equality among people inside and outside the Judeo-Christian tradition as well as believers and nonbelievers. But in the Texas ruling, Justice Stephen Breyer found in favor of keeping the Ten Commandments in place by introducing a new rationale—the desirability of averting social conflict.
Nussbaum thinks the Texas case is a close one that could have gone either way, but she shreds Breyer's methodology. "Should we really say that a display that everyone likes and that isn't stirring up trouble, because the offended minorities are too powerless to make trouble, is for that reason constitutional?" she asks. "This seems to be a very bad theory for an egalitarian nation to adopt." Worse, Breyer left it "no longer clear that the equality theory is consistently endorsed in hard cases." Nussbaum's contribution is to show vividly how the equality tradition leads the Court, and the rest of us, to ask the right questions. As she understands, this is what we can ask of the law.
Emily Bazelon is a senior editor at Slate. This article appeared as a book review in The New York Times Book Review, March 23, 2008.