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

by Martha Nussbaum

Overview

In one of the great triumphs of the colonial and Revolutionary periods, the founders of the future United States overcame religious intolerance in favor of a constitutional order dedicated to fair treatment for people's deeply held conscientious beliefs. It granted equal liberty of conscience to all and took a firm stand against religious establishment. This respect for religious difference, acclaimed scholar Martha Nussbaum writes, formed our democracy. Yet today there are signs that this legacy is misunderstood. The prominence of a particular type of Christianity in our public life suggests the unequal worth of citizens who hold different religious beliefs, or no beliefs. Other people, meanwhile, seek to curtail the influence of religion in public life in a way that is itself unbalanced and unfair. Such partisan efforts, Nussbaum argues, violate the spirit of our Constitution. Liberty of Conscience is a historical and conceptual study of the American tradition of religious freedom. Weaving together political history, philosophical ideas, and key constitutional cases, this is a rich chronicle of an ideal of equality that has always been central to our history but is now in serious danger.

Product Details

ISBN-13:	9780786721948
Publisher:	Basic Books
Publication date:	02/05/2008
Sold by:	Hachette Digital, Inc.
Format:	eBook
Pages:	416
Sales rank:	388,279
File size:	521 KB

About the Author

Martha Nussbaum, one of the leading moral philosophers of our time, holds appointments in the Law School, Divinity School, and Philosophy Department at the University of Chicago and is a board member in the university's Human Rights Program. She is the author of twelve previous books on philosophy and ethics. Her book Cultivating Humanity won the Grawemeyer Award for Education. The recipient of twenty-two honorary degrees from universities around the world, she lives in Chicago, Illinois.

Table of Contents

1 Introduction: A Tradition Under Threat 1

2 Living Together: The Roots of Respect 34

3 Proclaiming Equality: Religion in the New Nation 72

4 The Struggle Over Accommodation 115

5 Fearing Strangers 175

6 The Establishment Clause: School Prayer, Public Displays 224

7 Aid to Sectarian Schools: The Search for Fairness 273

8 Contemporary Controversies: The Pledge, Evolution, Imagination, Gay Marriage, Fear of Muslims 306

9 Conclusion: Toward an "Overlapping Consensus"? 354

Acknowledgments 365

Notes 369

Index 395

Index of Cases 405

Editorial Reviews

…[a] grand and penetrating discourse on religion and American law…As a teacher and scholar of law, philosophy and religion at the University of Chicago, [Nussbaum] 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…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.
—The New York Times

Emily Bazelon

In this engrossing history of the religion clauses of the First Amendment, Nussbaum (Cultivating Humanity) makes a strong, thoroughgoing case for America as a haven of religious liberty for believers of all stripes. Beginning with an illuminating rehabilitation of Rhode Island founder Roger Williams as America's earliest defender of religious equality, Nussbaum continues by examining how Williams's ideals have been both upheld and abandoned throughout the nation's history. After detailing the adoption of the establishment and free exercise clauses, Nussbaum comments at length on how these fairly general, vague clauses have been fleshed out by more than two centuries of case law. Refreshingly, Nussbaum does not add to the acrimonious cacophony around the idea of separation of church and state. Rather than pushing for strict separation, she argues for what philosopher John Rawls calls "overlapping consensus," which echoes Williams's belief that citizens who differ greatly on matters of ultimate meaning can still agree to respect each other's liberty of conscience. Nussbaum writes engagingly and with generosity; her critiques, particularly those of opinions written by Justices Scalia and Thomas, are pointed but respectful, and she demonstrates warm regard for Supreme Court plaintiffs who have braved persecution as they have followed the dictates of conscience. (Feb.)

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Publishers Weekly

The United States' tradition of religious liberty, based on accommodation of the religious conscience and government neutrality toward religious viewpoints, is a conception that Europeans would do well to adopt-and one Americans should take care to preserve. In surveying the contentious topic of religion's constitutional place in American life, philosopher Nussbaum (law, Univ. Chicago; Cultivating Humanity: A Classical Defense of Reform in Liberal Education) always keeps before readers what is at stake for the various constituencies: religious minorities, the nonreligious, and the larger majority society. After tracing the origins of American church-state doctrine, she examines the key topics of constitutional law on religion in its free exercise and nonestablishment forms. Grounding religious liberty in the concept of equality rather than as a separation doctrine, she is critical of "originalist" arguments based on "historical misunderstanding and philosophical error" that she believes would publicly privilege Protestant Christianity. This is an excellent analysis for the general reader, offering more depth than Noah Feldman's Divided by God: America's Church-State Problem-and What We Should Do About Itwithout the scholastic detail of Kent Greenawalt's Religion and the Constitution: Free Exercise and Fairness.
—Steve Young

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