​Thinking About Liberty

Reuel S. Amdur July/August 2016

It is right to be concerned about the rise of religious fear in the United States. Of course that goes in spades for Europe. Fear can be displaced from one thing to another, so that nervousness about the economy can be transferred to a scapegoat group—people of another religion or nationality, for example. While fear is essential for biological security, it needs guiding principles in social matters—grief, sympathy, and accurate knowledge.

These are the issues that American philosopher and author Martha Naussbaum seeks to address. Today she is professor of law and ethics at the University of Chicago. As Martha Craven, she was born in New York City on May 6, 1947, the daughter of George Craven, a lawyer, and Betty Warren, an interior designer. The family moved to suburban Philadelphia. They were Episcopalians, and she describes her father as a racist and anti-Semite. So what was a brilliant, independent-minded young woman to do? In 1969 she married Alan Nussbaum, a Jew. They were both university students studying the classics at the time.

Martha Nussbaum converted to Reform Judaism. While many people who convert to a spouse’s religion do not take it very seriously, not so for her. She meant it. And while her marriage ended in 1987, her commitment to her chosen faith only deepened. In 2008, at the age of 61, she celebrated a bat mitzvah.

In Judaism, boys celebrate a bar mitzvah at age 13, a coming-of-age ceremony going back to ancient times. Bar mitzvah translates to “son of the covenant.” The bat mitzvah (“daughter of the covenant”) is far more recent. It was inaugurated in the 1920s in New York City in a Reconstructionist Jewish synagogue. The ceremony, conducted at age 12 or 13, has since been taken up by other branches of Judaism, but it is far less ubiquitous than its male counterpart. During her bat mitzvah Nussbaum sermonized on biblical themes and on justice.

She received a B.A. at New York University and then went on to master’s and doctoral degrees at Harvard, where she then taught, till denied tenure. She moved to Brown and then to the University of Chicago. She holds cross appointments in law, religion, and philosophy. She has also been connected here with the classics, the political science department, and with South Asian studies. One would be inclined to call her a modern-day Renaissance woman, but that term does not have quite the same resonance that Renaissance man has. We are left with the less-colorful term polymath.

In the field of philosophy she again has many interests, working on such varied topics as animal rights, feminism, and emotions. And then there is her passionate commitment to religious liberty. She is the author of two substantial works on this topic, the 2008 Liberty of Conscience (Basic Books) and The New Religious Intolerance (Harvard University Press, 2012). Liberty of Conscience focuses heavily on the thought and activism of Roger Williams in colonial Rhode Island, while the other largely reviews Supreme Court decisions on religious questions. We will call them Liberty and Intolerance.

In Intolerance she argues for liberty and equality on the grounds that we all have our human dignity, and in that regard we are all equal. “Dignity is that attribute of a person that makes the person an appropriate object of respect.” Alternatively, in Liberty she says that they flow “from a special respect for the faculty in human beings with which they search for life’s ultimate meaning.”

Nussbaum finds the United States to be better in religious liberty than Europe. In part, that may be because many of the earlier settlers fled from religious persecution in Europe. Yet, beginning even in colonial times, America has had its problems. She cites the native Indians, Mormons, Jehovah’s Witnesses, and Roman Catholics as being victimized at certain times.

Religious liberty, she says, needs to be based on political principles of equal respect. As well, we should not make an exception for ourselves. She cites the New Testament admonition about the mote in the other’s eye and the beam in one’s own. The third element is the need for the “inner eye,” the ability to put oneself in the other person’s shoes. Nussbaum recommends good fiction to aid in that endeavor. As well, she tells us of Roger Williams’ experience befriending and even living with his Indian neighbors, learning their language.

Returning to the principle of equal respect, she sees no need for the ban on Muslim attire in Europe, nor for the ban on minarets in Switzerland. Roger Williams said that human dignity includes the right to have outward observances.

Were there real reasons for the upset over Muslims? She cites Aristotle on the herd instinct in reaction to them, an instinct that is enlarged if someone whose reputation is respected gives leadership to this reaction. In France, political leaders stumbled over one another promoting bans on Muslim garb. In Canada there has been a similar hysterical reaction. However, in Canada the defeat of Conservatives and of the Parti Québcois has essentially put the brakes on this anti-Muslim stampede. Sympathy for the Syrian refugees arriving has also tended to derail the prejudice.

But are there not sound reasons against Muslim face coverings? People wear ski masks, she notes. Some have argued that face coverings are unhealthy. She retorts that she loves her unhealthy high-heel shoes.

Nussbaum finds things happening in America that promote anti-Muslim prejudice and hysteria. The FBI recommended to agents a book by Robert Spencer, The Truth About Muhammad, and developed a PowerPoint presentation based on it for new recruits. She notes that the book says that Islam turns a “country’s culture into seventh century Arabian ways.”

She discusses the controversy around the so-called Ground Zero mosque in detail. While finding the conflicting ideas about the role of the building, between the two people involved in the idea and in the strategy for promoting it, she nevertheless identifies with the basic principles for which Mayor Michael Bloomberg spoke in support of the proposed facility. She cites the comments to the Wall Street Journal of a stripper from a club in the area: “I don’t know what the big deal is. It’s freedom of religion, you know.”

In Libertyshe identifies two positions on equality. One, identified with the views of Roger Williams and Immanuel Kant, favors accommodation. According to this viewpoint, it is necessary to accommodate to meet the needs of minority conscience. George Washington wrote to the Quakers to assure his support for their practice of pacifism. The other position, which she identifies with John Locke, holds that so long as laws treat everyone equally, there is no need for accommodation. Thus, a law forbidding the use of Latin in church is not acceptable if it can be used in school.

The distinction between these positions is more than academic. The late Supreme Court justice Antonin Scalia took a Lockean position, and the dispute around his replacement reflects opposing views on civil liberties. Let’s take an example.

Adell Sherbert, a Seventh-day Adventist in South Carolina, lost her job in a factory because she would not work on Saturday. She applied for unemployment insurance and was denied. Saturday work was a general requirement. However, the Supreme Court took an accommodationist approach and found her eligible.

Even more regressive than Scalia, Justice Clarence Thomas argues that the Bill of Rights apply only to the federal level and have no relevance to state and local matters.

Nussbaum believes that the separation of church and state is not absolute. The fire department does and should go to a burning church. According to her, the most extreme form this principle arose from hostility toward Catholics in the nineteenth century and again after World War II. In part, the latter was in reaction to pro-Franco and pro-Mussolini stances of some clergy, but she points to such liberal Catholics as Jacques Maritain. As for the earlier period, she cites the ghastly 1859 instance when Thomas Whall, a Catholic child, was beaten on the knuckles with a stick till he relented and read out the Protestant version of the Ten Commandments.

Her alternative approach is to focus on equality. For example, teachers for remedial math and special education should, she holds, be allowed to assist in parochial schools. The needs of the children trump separation of church and state.

She points to children’s vulnerability in schools, both in regard to teachers and to peer pressures. Hence, prayer and participation in the pledge of allegiance are questioned. The refusal of the pledge by Jehovah’s Witnesses went to the Supreme Court twice, first upholding it and then reversing itself.

Edward Schempp, a Unitarian, took his school district to court, objecting to school prayer and Bible reading. He did not choose to take his children out of class for the exercises because he did not want them to stand out. One of his sons in high school took his own action. When it was his turn to do a Bible reading over the loudspeaker, he read from the Quran. The principal chewed him out. However, the Supreme Court decided 8 to 1 to ban the prayers and Bible readings.

She also spoke of nonreligious conscience, citing a case in which a secular conscientious objector was acknowledged by the Supreme Court. During the draft, exemption was a shoo-in for members of traditional peace churches. Those of other religions often had a hard time. Secularists were almost always turned down. The question is why religious beliefs should be given priority. This is a difficult question for her, while her sympathy is with giving secularists equal status.

One can take issue with Nussbaum’s focus on conscience. Many people identify with a religion not because of soulful searching. Not all of us are philosophers. Lots of people take their religion less than profoundly. Most Catholics use birth control, and abortion is hardly unknown among them. In many cases religion is an accident of birth. Perhaps a better formulation would be that her principles apply because there is, among these groups, people who have thought hard and care deeply. Individual convictions would of course be another but not exclusive consideration. Thus, a right would be a group right as well as an individual one.

Regardless of any caveats, the fact is that Martha Nussbaum is an important and forceful voice for religious liberty. One can but admire her efforts and her dedication. We need more thoughtful and reasoned advocacy for religion and religious rights and less polemics and narrow demands.

Article Author: Reuel S. Amdur

Reuel Amdur writes from Val-des-Monts, Quebec, Canada.