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NO TEARS FOR CREON

  • Marc O. DeGirolami (a1)

Abstract

This essay critiques Professor Martha Nussbaum's book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (2008). Nussbaum's thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of equal respect—that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that equal respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free-exercise and establishment issues in light of this principle, concluding that the tradition of religious equality is under threat and calling for renewed vigilance in its defense. This essay criticizes Nussbaum's elevation of the principle of equal respect to supreme normative status. It claims that Nussbaum's single-minded focus on equal respect distorts and misunderstands the conflicts actually at issue in many religious liberty disputes. The essay focuses specifically on the inadequacies of her assessment of two prominent religious liberty cases, one in the free exercise and the other in the established context. This essay concludes that there are reasons for deep skepticism about Nussbaum's approach as a comprehensive theory of the religion clauses.

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1. Sophocles, Antigone ll. 1105–1112 (R.C. Jebb trans.) (the Fifth Episode) (Cambridge University Press, 1900), available at http://classics.mit.edu/Sophocles/antigone.html.

2. Martha C. Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (2008).

3. Nussbaum, a renowned classicist, likewise has little compassion for Creon himself. See Martha C. Nussbaum, The Fragility of Goodness 51–82 (1986).

4. Nussbaum, Liberty, supra note 2, at 56–57.

5. Id. at 73, 83–84, 95.

6. John Courtney Murray once quipped that when theorizing about religious liberty, “Scylla is archaism; Charybdis is anachronism.” John Courtney Murray, Religious Liberty: Struggles with Pluralism 188 (J. Leon Hooper ed., 1993).

7. John Kekes, The Morality of Pluralism 19 (1993). Sophisticated advocates of overriding values may resist the ascription of a desire to order values hierarchically, as Ronald Dworkin does, but their views invariably demand the prioritizing of a particular value as central or focal, around which all other values neatly arrange themselves. See Ronald Dworkin, Equality, Luck, and Hierarchy, 31 Phil. & Pub. Aff. 190, 196–197 (2003) (stating that his own view does not rest on “selecting one political value as fundamental so that others are subordinate . . . but through an interpretive method that emphasizes interrelations and interdependencies among all the political values, supposing them to come together in an overall account of a society of equals”; emphasis added).

8. Wisconsin v. Yoder, 406 U.S. 205 (1972).

9. Wallace v. Jaffree, 472 U.S. 38 (1985).

10. See generally Martha Nussbaum, The Fragility of Goodness (1986); Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (2006); see also William A. Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice 5 (2002) (listing Nussbaum as one of the “leading contributors” to a “full-fledged value-pluralist movement”).

11. Nussbaum, Liberty, supra note 2, at 226.

12. Martha Nussbaum, Women and Human Development: The Capabilities Approach 179 (2001). Nussbaum is well known for her contributions to “capabilities” theory—the view that egalitarian political theory ought to concern itself with a person's “‘basic capabilities’: a person being able to do certain things.” Amartya Sen, Equality of What?, in Equality 175 (David Johnston ed., 2000), originally published as The Tanner Lectures on Human Values (1980). Over the years, Nussbaum has made various lists of these human capabilities. Because Liberty of Conscience is only peripherally concerned with capabilities theory, however, this essay does not examine it in detail.

13. Martha Nussbaum, Capabilities as Fundamental Entitlements, in Capabilities Equality: Basic Issues and Problems 52 (Alexander Kaufman ed. 2005).

14. Nussbaum, Women, supra note 12, at 274.

15. Id.

16. Nussbaum, Liberty, supra note 2, at 19.

17. Id. at 1.

18. The discussion here focuses on the theoretical claims of Liberty of Conscience and leaves to the side both the ascription by Nussbaum of her own views to the American founders (“If there was anything that all the framers agreed strongly about, and never questioned, it was the idea of equality”; id. at 103) and the plausibility of the historical connections that Nussbaum draws among authors separated sometimes by ages, sometimes by millennia, of temporal and cultural distance.

19. Id. at 21–22.

20. Id. at 19.

21. Id. at 2 (emphasis added).

22. Id. at 19.

23. Id. at 22.

24. Id. at 22, 24.

25. Id. at 12, 25.

26. Id. at 74–76 (“establishments, however benign, create ranks and orders of citizens, defining the status of some as unequal to others”); see also id. at 225 (“What is wrong with religious establishment? . . . [A]bove all, the tradition sees in establishment a threat to equality”).

27. Id. at 76.

28. Id. at 226.

29. Id. at 124–125.

30. Id. at 360.

31. Id. at 362.

32. Id. at 82 (“One more influential Stoic idea that will play an influential role, ultimately, in constructing our First Amendment is that of human beings as ‘citizens of the world’ or ‘cosmopolitans'”). John Gray acutely describes this brand of liberalism as envisaging a “universal convergence on a cosmopolitan and rationalist civilization.” John Gray, Enlightenment's Wake: Politics and Culture and the Close of the Modern Age 121 (1995).

33. Nussbaum, Liberty, supra note 2, at 229.

34. Nussbaum, Fragility, supra note 10. See especially ch. 2, Aeschylus and Practical Conflict, in id. at 25–50.

35. See Nussbaum, Liberty, supra note 2, at 376–377 n.4 (“On the whole, [Kent] Greenawalt's analysis is broadly consistent with mine, although it is more open-ended and plural-valued, focusing less on equality as a central goal, and suggesting that different approaches may be justified in different areas of the law”). One might argue that Nussbaum is still a value pluralist because she believes that there are many conflicting and incommensurable values but that they are only truly or fully valuable, from a political perspective, if they are provided equally. But Nussbaum insists that these values are, in effect, valueless unless equally distributed—that is, they gain their political value only when married to the principle of equal respect. She therefore seems to be appealing to equality as a sort of master value. Thanks to Matt Lister for clarification on this point.

36. Id. at 95.

37. Id.

38. Id. at 169.

39. See id. at 226–227.

40. Sherbert v. Verner, 374 U.S. 398 (1963).

41. 42 U.S.C. §§2000bb to bb-4 (2005).

42. 42 U.S.C. §§2000cc to cc-5 (2005).

43. Employment Division v. Smith, 494 U.S. 872 (1990).

44. See Nussbaum, Liberty, supra note 2, ch. 4.

45. Yoder, supra note 8, at 207 (citing Wis. Stat. §118.15 (1969)).

46. Id.

47. There are important historical differences between the Old Order Amish and the Mennonite Church, but for simplicity, the claims of the Yoder plaintiffs are referred to here simply as those of “the Amish.”

48. Id. at 209.

49. Id.

50. Id. at 209–210.

51. Id. at 210.

52. Id. at 210–212.

53. Id. at 211–212. Public school education through the eighth grade was not objectionable to the Amish because it enabled their children to “read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary in the course of their daily affairs.” Id. at 212.

54. See 1 Kent Greenawalt, Religion and the Constitution: Free Exercise and Fairness 93 (2006) (“Advanced education [for the Amish] is triply harmful. It draws children away from the community at a stage vital for their integration into Amish society; it involves activity directly opposed to the simplicity of Amish life, attracting—tempting, one might say—young people to alternative styles of living; and it may make more difficult someone's faithful adherence to the Amish community.”).

55. Yoder, supra note 8, at 212–213.

56. Id. at 212.

57. See Pierce v. Society of Sisters, 268 U.S. 510 (1925).

58. Yoder, supra note 8, at 216.

59. Id. at 245 (Douglas, J., dissenting).

60. Id. at 244–245.

61. Id. at 217.

62. See Marc O. DeGirolami, The Problem of Religious Learning, 49 B.C. L. Rev. 1213, 1224 (2008).

63. See Greenawalt, supra note 54, at 91–92.

64. Id. at 91 (“Education assists people to enjoy forms of culture; cutting their education short restricts development of that capacity in students”).

65. Josh Chafetz, Social Reproduction and Religious Reproduction: A Democratic-Communitarian Analysis of the Yoder Problem, 15 Wm. & MaryBillRts. J. 263, 264 (2006). (describing both “symbolic and practical” value in the Amish rejection of technological comforts).

66. Nussbaum, Liberty, supra note 2, at 144–146.

67. Id. at 144. In Sherbert, the Court held that the government could not deny unemployment benefits where the plaintiff claimed that she could not work on the Sabbath for religious reasons. Sherbert, supra note 40, at 398.

68. Nussbaum, Liberty, supra note 2, at 144.

69. Id. at 145.

70. Id.

71. Id.

72. Greenawalt, supra note 54, at 90–91 ((1) “increas[ing] the skills a child needs for a career”; (2) “enhanc[ing] an individual's ability to choose how to live”; (3) “assist[ing] people to enjoy forms of culture” (especially literature); (4) “help[ing] students understand principles of American government and learn to participate actively in democratic institutions”; and (5) “assist[ing] moral development beyond those aspects of morality that involve citizenship”).

73. See DeGirolami, supra note 62, at 1223–1225. My own view is that it is a mistake to think about the aims of a liberal education in these civic instrumentalist terms.

74. Yoder, supra note 8, at 213.

75. Notwithstanding what Nussbaum says about the financial condition of the Amish, the Court nowhere suggests that the Amish should receive an exemption because they are “wealthy.” Nussbaum, Liberty, supra note 2, at 145. The Court does point out that the Amish “reject public welfare in any of its usual modern forms.” Yoder, supra note 8, at 222. If one lives modestly within a community, one might be far from “wealthy” and still “reject public welfare” for any number of reasons.

76. One can only speculate whether Nussbaum would have opposed the result in Yoder had it been more directly at odds with her equal-respect principle.

77. Stephen Macedo, Liberal Civic Education and Religious Fundamentalism: The Case of God vs. John Rawls?, 105 Ethics 468, 488 (1995).

78. Nussbaum, Liberty, supra note 2, at 24.

79. Id. at 175–223.

80. Id. at 357.

81. Id. at 357–358.

82. Id. at 359; id. at 28.

83. Id. at 145.

84. Id. at 8.

85. Nussbaum articulates the Amish position in Yoder but says virtually nothing about it.

86. Id. at 145.

87. Id. at 144.

88. Id.

89. Id. at 95.

90. See, e.g., James Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 Cal. L. Rev. 1371, 1375, 1447 (1994) (arguing that parents have only a “privilege” and not a “right” to direct their children's education—a privilege that can never measure up to the state's right of intervention on behalf of the child—and that the Supreme Court ought to overrule Yoder); Marci A. Hamilton, God vs. the Gavel: Religion and the Rule of law 131 (2005); Martha Albertson Fineman, Taking Children's Interests Seriously, in What Is Right For Children: The Competing Paradigms of Religion and Human Rights 237 (M.A. Fineman & K. Worthington eds., 2009) (arguing that “public education should be mandatory and universal” and that all alternatives ought to be outlawed).

91. Nussbaum, Liberty, supra note 2, at 144–145.

92. James Fitzjames Stephen, Liberty, Equality, Fraternity 179 (University of Chicago Press 1990) (1874).

93. Jaffree, supra note 9, at 40.

94. Id. at 69 (O'Connor, J., concurring). For O'Connor, as for the Court, the outcome of the case turned on the fact that there were statements in the legislative history by the law's sponsor that the law was “an effort to return voluntary prayer to our public schools.” Id. at 77.

95. Id. at 69 (O'Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668 (1985)).

96. Sherbert, supra note 40, at 398.

97. Nussbaum, Liberty, supra note 2, at 18–20.

98. Id. at 20.

99. Id. at 67.

100. Id. at 247 (quoting Jaffree, supra note 9, at 69 (O'Connor, J., concurring)).

101. Id. at 247–248 (quoting Jaffree, supra note 9, at 76 (O'Connor, J., concurring)).

102. Id. at 248.

103. Id. at 20.

104. Id. at 69.

105. Id. at 229.

106. See 2 Kent Greenawalt, Religion and the Constitution: Establishment and Fairness 185 (2008). Greenawalt explains:

If it is the feeling that one is an outsider that is particularly detrimental, perhaps the sentiments of nonadherents should be given special consideration. . . . The “objective observer” approach may seem to avoid this problem. If it does so, it fails to give special regard to minority sentiments without an explanation of why that makes sense.

Id. at 185.

107. For plausible criticisms, see id. at 183–188.

108. Nussbaum, Liberty, supra note 2, at 229.

109. H.L. Mencken, A Mencken Chrestomathy 626 (1949).

110. Nussbaum, Liberty, supra note 2, at 171.

111. Id. at 19.

112. Id. at 170.

113. Andrew Koppelman, Is It Fair To Give Religion Special Treatment?, 2006 Ill. L. Rev. 571, 585 (2006); see also Andrew Koppelman, Conscience, Volitional Necessity, and Religious Exemptions, 15 Legal Theory 215, 215–216 (2009) (“‘conscience’ is not a good explanation for the core exemption cases; it is present in cases that almost no one would want to accommodate, and it fails to justify exemption in many cases where the claim for exemption seems strong”).

114. Remmers v. Brewer, 494 F.2d 1277 (8th Cir. 1974); Goff v. Graves, 362 F.3d 543 (8th Cir. 2004).

115. Something might be said about the inconsistency of Nussbaum's rejection of thrift or economic responsibility as a “Protestant” value while simultaneously subordinating the claims of tradition to “conscience.” This latter move is more protestant than Protestantism—practically Quaker or Unitarian in its approach, perhaps two of the only traditional religious constituencies that might find Nussbaum's view of conscience remotely satisfying. Thanks to Samuel Bray for this point.

116. Nussbaum, Capabilities, supra note 13, at 52.

117. Id. at 52–53.

118. Id. at 52; see also Nussbaum, Women, supra note 12, at 180 (“When we tell people that they cannot define the ultimate meaning of life in their own way—even if we are sure we are right, and that their way is not a very good way—we do not show full respect for them as persons”).

119. If “experiencing and producing” literary or artistic “works and events” is meant in some other way, then it becomes difficult to know precisely how to assess it.

120. Nussbaum, Women, supra note 12, at 182.

121. Id. at 188.

122. See Martha C. Nussbaum, Human Capabilities, in Women, Culture, and Development: A Study of Human Capabilities 73–74 (Martha C. Nussbaum & Jonathan Glover eds., 1995).

123. Nussbaum, Women, supra note 12, at 76.

124. Id.

125. Nussbaum, Liberty, supra note 2, ch. 9.

126. For an interesting and critical taxonomy of conscience, see Koppelman, Conscience, supra note 113, at 225–233.

127. Nussbaum, Fragility, supra note 10, at 58.

NO TEARS FOR CREON

  • Marc O. DeGirolami (a1)

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