from
Liberty of Conscience
by
Martha C. Nussbaum

How the abstract principles and goals embodied in the constitutional text should be applied to a changing social reality is a question that seems to require flexibility. Indeed, one major trouble has been a premature search for rules that can be mechanically applied. [...] As Aristotle said about justice, so here: it is crucial not to have standards that are mechanically applied to a convoluted and changing subject matter.

Recognizing complexity in the application of principles and standards is not, then, in itself problematic. It is to the credit of the tradition, on the whole, that it has allowed itself to get so baroque and contextual that it takes surprisingly many particular circumstances into account in deciding particular cases.

Civil peace has traditionally been important, as a subsidiary consideration. But, as the early settlers knew all too well, there can be a peace that is oppressive, denying minorities equal respect. [...] 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? This seems to be a very bad theory for an egalitarian nation to adopt.

Think of the Hindus, Buddhists, and Jains who joined the litigation, insisting that the display expressed the endorsement of Judaeo-Christian religion and disfavored the Hindu religion. Members of these religions are not very numerous in America. [...] Again, we can’t imagine peaceful Buddhists rioting because the Ten Commandments disfavor them. But that surely does not make it all right to send a message that these people are not fully equal citizens. So a threat to peace doesn’t seem to be necessary for an Establishment Clause violation. If what Justice Breyer really means to say is that the Court should not say that a violation is a violation when so doing would lead to violence, that is a different claim, but is it correct? Brown v. Board of Education could have been expected to lead to violence, and it did. Should the Court therefore have maintained silence?

Often, moreover, a focus on violence will in and of itself favor majorities and disfavor minorities, especially relatively powerful minorities. It’s a safe bet that a decision that shocks and upsets Christians will be more likely to lead to widespread tumult than a decision that disfavors Buddhists or Hindus, simply because there are a lot more Christians in the U.S.

Justice O’Connor makes it clear that this is not a theory of de minimis violations, violations too small for us to be worried about them. There are, she rightly says, no de minimis violations where fundamental constitutional rights are at issue. There are, however, cases in which the religious reference or language does not rise to the level of a violation. The reasonable objective observer, knowing the relevant facts of history, would rightly see these references as using religious language “for essentially secular purposes. One such purpose is to commemorate the role of religion in our history.” [...]

Four criteria are suggested as good things to look for when we ask about traditional religious language. The first is history and ubiquity: how old is the reference, how well embedded in tradition, and how widespread? [...] The second is absence of worship or prayer: the observance should not demand that people join in an act of worship. The third criterion is absence of reference to a particular religion. [...] The final criterion is minimal religious content. The reference should be “highly circumscribed,” so that people who want to avoid it can easily do so.

There are many sources of strife and bad behavior in human life. Religious extremism has sometimes been one of them, but so has atheistic political extremism, as in various violent Marxian regimes and the basically atheistic regime of Nazi Germany. So, too, has the extremism of profit, as in the violence of capitalist colonialism. The violence of men against women is one of the most long-lived and pervasive types of violence in human history, and it appears to have little to do with religious, political, or even economic ideologies [...]

There is much more to be said about how it happens that religious doctrines that internally favor peace so often lead to violence against one’s neighbors, but this phenomenon probably has much more to do with universal human frailty, and with the mobilizing power of ideologies, than with anything specific to religion or religions. It would be best if people could focus on combating bad behavior wherever it arises, rather than smugly suggesting that if we were all atheists, the world would be a more peaceful place. The history of Marxism certainly did not support that contention.

The idea that denying gays and lesbians a variety of public privileges under law is an essential part of Judaeo-Christian religion, something without which religion suffers a substantial burden, is, put just that way, unconvincing. There are so many parts of the Bible that believing Jews and Christians do not seek to enforce as public law: prohibitions on idol worship and heresy, for example, which cannot be enforced as public law because of the religion clauses themselves. There are also many biblical prohibitions that, in the modern era, strike most people as an implausible basis for public law [...] Same-sex acts, moreover, are treated in Leviticus exactly the way adultery is treated (20:10), and few Jews and Christians, however pious, still support criminal penalties for adultery.

Not all reasons for opposing same-sex marriage are based on irrational fear. But the reasons that are not based on fear do not look like public reasons, part of the shared ethical space we inhabit together; they look like theological reasons that are inside the private domain of the religions in question. [...]

Some people do offer purported public reasons against recognizing same-sex marriage. One such reason that is not very strong is that by admitting such marriages the state would thereby be endorsing “the gay lifestyle,” and thus insulting sincere believers for whom it is sinful. Certainly the state uses many considerations when it decides which marriages to recognize, as it does when it defines the family, but moral approval has never been salient among these interests. If moral approval were conveyed by allowing two people to marry, we would have a different regime of heterosexual marriage [...] Nor is it true of the public definitions of family that have prevailed in different times and places.

The burqa poses no problem that normal Chicago winter gear and surgical masks do not pose. So what is going on when people focus on it as a threat to a common culture and seek to ban or limit it? It seems fairly evident that what is really going on is a fear of difference and strangeness, fear of a nonmajoritarian lifestyle that refuses to assimilate. Jack Straw was at least honest when he concluded that the burqa is “such a visible statement of separation and of difference,” and was objectionable on that count alone.

The attack on America’s tradition of religious equality, as we have seen, is ongoing. It has been with us, in a variety of guises, from the very moment that there was such a tradition. The values that this attack, in its many forms, exemplifies (fear of the strange, a love of hierarchy, a desire to lord it over others) are probably older than the equality tradition itself. In each era of human history, it would seem, the value of equal respect for all human beings needs to be reforged and reestablished, in reaction against easier and more prevalent customs of unequal regard that have deep roots in human psychology. [...] We have the great good luck to live in a nation that has taken the principle of equal liberty of conscience to heart in its founding document. But history shows us that constant vigilance is required lest this value be narrowly and partially construed, or misapplied in ways that favor hierarchy.