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

by Martha C. Nussbaum

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.

Genres: Philosophy, Religion, Politics, History, Law, Nonfiction, Humanities

416 pages, Hardcover

First published February 4, 2007

About the author

Martha C. Nussbaum is Ernst Freund Distinguished Service Professor at the University of Chicago, appointed in the Law School and the Philosophy Department. Among her many awards are the 2018 Berggruen Prize, the 2017 Don M. Randel Award for Humanistic Studies from the American Academy of Arts and Sciences, and the 2016 Kyoto Prize in Arts and Philosophy.

Reviews

[Annina Ponticelli · Rating 4 out of 5]

difficile ma necessario

[Alicia · Rating 5 out of 5]

The author of Liberty of Conscience is one of those books that (so far) has been a joy to read because it so closely echoes my own beliefs and ideas about what the separation of church and state (not to mention religious freedom) is all about. The author has presented her thoughts and ideas in a clear, scholarly way that argues for the founding fathers intention to build a country that "respects the preciousness and dignity of the individual human conscience and the equality of all religions (or lack of religion)". In other words, the right of every individual to follow his own path, to pursue spirituality (or lack thereof) it his own way. The author revisits every major defining moment of our country and shows that it was founded with very clear protections and ideas about the separation of church and state for the protection of BOTH entities and also makes an excellent case for why protecting those boundaries is so important to the health of each entity.

I really believe in these principles but of course, I still struggle with some of the more day-to-day practical issues. For example, a friend was raised as a Jehovah's Witness and it did an enormous amount of damage with regard to her ability to follow her own path and discover her own religious truths. How does governmental non-intervention respond to these kinds of issues and where do we draw the line?

[Vincent Li · Rating 5 out of 5]

Like other Nussbaum books, quite enjoyable and original. The take-way from the book is that the establishment and free exercise are based on notions of equality. The establishment clause ensures that no orthodoxy is imposed, to create in and out groups (essentially, the endorsement test in Lynch), as Madison said, all citizens are equal in the public square. The free exercise clause recognizes that generally applicable laws, enacted by a majority can sometimes unintentionally (or occasionally intentionally) burden religious minorities, and that equality demands an accommodation. Re-freshingly, Nussbaum praises the general traditions of religious liberty in America, calling on Europe to look towards American, traditions, especially in accommodation. The book also notes times in US history when America failed to uphold its traditions, in its persecution of members of the LDS and flag salute cases regarding Jehovah's witnesses (Gobitis). The book also warns of possible threats to our freedom of religion traditions, but that part of the book was more topical, and I think by nature less robust.

The book does a great job of giving the background and law of the famous line of religious cases, from Reynolds, Sherbert, Smith (which Nussbaum critiques), to Yoder. The summary of the facts and law are accurate, and the book provides some interesting and novel perspectives. In particular, Reynolds held that the first amendment did not protect early members of the LDS from criminal prosecution for polygamy. While Nussbaum's opposition to bans on polygamy is consistent with her generally libertarian premises, the book is also sympathetic in a historical sense. The book mentions that polygamy was justified by the idea that it would prevent abandonment of wives, and (at least in theory) all prior wives would have to consent to newer wives. The book also makes the point that the critics of polygamy at the time turned a blind eye to the cruelty of marriage under common law principles. Under the common law, after marriage, women lost their separate legal status and not generally own property or divorce. While this isn't a watertight argument for the legality of polygamy, these arguments are interesting and provide a more realistic context. Another surprising argument was Nussbaum's sympathy for catholic parochial schools. The book makes the point that generally schools were set up with a deeply favoring protestantism (an example of this was the recitation of the protestant version of the ten commandments), so in a sense catholic schools were set up as an escape from a majoritarian oppression. The book also argues that the liberal secular knee jerk response to separate church and state had its partial origins in an ugly and deep national anti-catholicism (Nussbaum discusses some interesting politics here as well, separating the radical right wing ultramontanists from most practicing catholics). The books treatment of these controversial issues is sympathetic and well-reasoned, and even though the reader might not always agree, the book always makes a compelling arguments which sometimes lead to surprising conclusions.

One scholarly part of the book I really enjoyed was the discussion of stoicism, and Roger Williams. Nussbaum is interested in the stoics (she is the editor of a series of English translations of the works of Seneca) and argues that the Framers and enlightenment were deeply influenced by the stoic linkage of dignity to moral autonomy/capacity. Nussbaum notes however, stoicism's belief in the moral autonomy and worth of individuals could not be translated into a protection for freedom of religion because the stoics believed that moral capacity was extremely robust, and therefore did need legal protection. It took Roger Williams to realize that one's conscience, or seeking of meaning in one's life should be respected for everyone and that it is inherently fragile, subject to oppression, especially by intolerant government. The book's portrayal of Williams is very appealing. Williams traveled amongst Natives, learning their language and their customs. When he was expelled for his radically tolerant beliefs, Williams set up Rhode Island to be tolerant of a wide range of religious beliefs and enshrined accommodation to exempt individuals from generally applicable laws when their conscience dictated otherwise. Williams drew from Plato, an analogy that the citizenry was like a crew on a ship, the captain could bind them to conduct against their will only if the ship was threatened. The book compares Williams's vision of toleration favorably with Locke's view (though Williams seemed to be disorganized and rambling compared to Locke), and argues that William's view is not based off of any religion but a moral understanding. Nussbaum uses this conception of conscience to help define religion. Surprisingly despite the many cases on the matter, few cases have addressed the definition of religion. Nussbaum argues that religion is not always tied to a belief in a deity (and cites for example, her own form of Judaism, that conceives of God as a rational order instead of personal deity), but in the use of our capacity to find meaning in life.

[Tom · Rating 3 out of 5]

The book provides discussion of the journey into America’s history toward achieving religious equality. Martha Nussbaum’s historical perspective into the development of the Bill of Rights with discussion of Rhode Island’s founder Roger Williams’ views on tolerance, religious liberty and fairness; and in addition to the thoughts of James Madison, as well as others. The book provides a discussion of religious discrimination cases, both at the State and Federal Court levels, that has shaped the current status of religious liberty in the U.S. In the end her conclusion is that we still have more work to be done to truly achieve religious equality, tolerance and fairness for all. I found this book interesting and informative.

[Abbie Lee · Rating 4 out of 5]

martha 🙌🙌 easily digestible and well written. i agreed w most of what she said but she kind of did not really give opposing view points enough credit…. but love her go martha

[Ekkeko · Rating 4 out of 5]

I've learned that while the Establishment/Free Exercise clause is plainly written, it's interpretation is always in question. The ideal of free exercise of conscience has always and will always be under attack by those people who benefit from it being in place. Each generation must preserve and enhance this basic fundamental U.S. ideal.

The other thing I've learned is that Ms. Nussbuam needs a better editor. There are some really fascinating chapters in the book, but it starts off as a history book instead of a gripping contemporary book. This may serve it well thirty years hence, but for the current day, the first several chapters slog along with a recitation of older philosophers who have formed the basis of our Constitutional law.

[Gobasso · Rating 5 out of 5]

Even though the culture wars are less prominent this election because of the economy they are still out there. This book traces the development of our freedom of conscience from colonial America and Roger Williams through the First Amendment up to todays' Supreme Court decisions. Martha Nussbaum does a fine job of presenting the diverse opinions about constitutional law and freedom of conscience philosophy. She has her own viewpoints which I agree with. I'm sure many people who have a better grasp of the constitution will argue with her dismissal of original intent. But, I think no one will walk away from this book and not realize how very special this specific individual right is in this country and how difficult it can be to protect it.

[ReadHowYouWant · Rating 5 out of 5]

Praised by Paul Weithman, author of Religion and the Obligations of Citizenship, as “Historically informed and philosophically sophisticated, thoroughly accessible and elegantly written…A shining example of American public philosophy at its best,” Liberty of Conscience is a historically based argument that equal respect for all citizens is the bedrock of America’s 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.

[Don · Rating 3 out of 5]

A nice read, particularly for anyone interested in some of the more legal history surrounding the First Amendment's religious clauses and the dual protection of free exercise of one's religion and freedom from the government imposing a particular religion. I tend to do a fair amount of constitutional law work, particularly with the First Amendment, so there wasn't much in the book that surprised me, but its a definite read for anyone wanting to understand the legal history of the issues that are more often coming to the forefront of our modern political debates.

[Marks54 · Rating 4 out of 5]

This is a book about the American legal tradition around freedom of religion written by a well known philosopher. I had never read anything by Nussbaum and tried this after reading a feature about her in the NY Times magazine. It is very clearly written and thoughtful. It is obvious that there is a long intellectual tradition on these issues of which I am not overburdened with knowledge, but I learned much from this book and wanted to read more by Nussbaum.

[Aleighdavis · Rating 4 out of 5]

She repeats herself a lot in this one and is definitely trying to reach a broader reading audience. It's a little rocky as far as sticking to her audience, but overall I would highly recommend this one to those who think that removing the word "God" from the pledge of allegiance would be the cataclysmic sign of the apocalypse.

[Jason · Rating 3 out of 5]

I give this book three stars not because I agree with the author's argument. However, I am glad that she wrote the book and articulated her position well because it provides the opportunity for a meaningful engagement with the liberal tradition that she defends. I believe that this liberal tradition has fatal flaws. This book puts them forward for all to see.

[Miguel Soto · Rating 3 out of 5]

Para evitar la "violación del alma", Nussbaum se añade a la tradición norteamericana del derecho y argumenta a favor de la "libertad de conciencia", cada quien puede tener las creencias (religiosas) que desee, o no tenerlas, y esto no lo hace inferior a los demás ciudadanos, pero ojo, tampoco superior: ni privilegios ni exclusión.

[Sally]

Interesting particularly for its survey of US court cases dealing with various aspects of this subject.

[Hands · Rating 4 out of 5]

When, and why, did the title change? My copy is subtitled "In Defense of America's Tradition of Religious Equality".

[Savola · Rating 4 out of 5]

Very intersting. So far it has explained how religious freedom began in American.

[Tammy]

Extremely thought-provoking. Highly recommended for those interested in the intersection of religious freedom and law in the U.S.

[Keith Sader · Rating 4 out of 5]

Tour de force of the religious history of the U.S.

[Jeff Sharlet · Rating 3 out of 5]

My review of this will appear in 2008 spring books issue of The Nation.