For years, I have been fascinated by the legal and political questions involved in religion/state affairs. What do the religion clasuses of the first amendment permit and rule out? How can the state be neutral towards religion while repectful of it? I have read many books on these questions from all different sides of the "spectrum" and I must say that Nussbaum's "Liberty of Conscience" is easily the weakest and most surface-level analysis I have thus far read.
Her goal is to show that our religious tradition of nondiscrimination towards, and non-establishment of, religion(s) is based on a vision of human equality that finds embodiment in the Stoic philosophers and Roger Williams, founder of Rhode Island. I have never heard this point before and after hearing it, I can understand why. It is a tenuous view at best.
Most scholars argue, with evidence, that the libertarian-ish view towards religion stems from sources such as John Locke (who Nussbaum swears copied Williams's ideas), to a Montesqeiuian skepticism towards National government. Not so, says Nussbaum! Even though Williams was scarcely read in the New World and the Stoics were never quoted in the founders writings on religion, she finds ways to interpret the writings of Madison, Mason, Jefferson and the like through her desired lens.
Her next main concern is to argue for the rightness of the 'accomodationist' view towards religion. If a law or policy (you can be called to testify in court on Sundays) puts an undue burden on some religious folks, the state can accomodate (within reason). Nussbaum does succeed in showing that the Court HAS done this on many occasions, but does not show that they do it with any consistency (the cases that decide against accomodation are brushed off as "wrongly decided" withiout much explanation.
Also, Nussbaum fails to see that while she wants state neutrality towards religion AND accomodation of religion, she just cannot have both. The more you issue religious exemptions to the law, the less you are neutral towards religion. While she repeats many times her disagreement with Jusitice Scalia on this issue, she has certainly failed to convince me, as she does not put forward ANY CASE AT ALL that accomodations obliterate state neutrality towards religions. (She also fails to explain why she is very much against religious students being able to learn about Intelligent Design in science class and how this contrasts with her zeal for religious accomodations).
A side issue of Nussbaums is the question of whether the religion clauses were meant to apply to the states. Of course, this should be obvious, as the original draft of the first amendment, applying it to states, was swiftly struck down in the Senate. Nussbaum, as is usual, ignores the significance of this fact. The fact that she does not so much as MENTION Montesquieu's name ("Spirit of the Laws") is embarassing here, because the Federalist papers make very Montesquieuean arguments about why localities should be free to govern themselves (and agaisnt the Federal government trumping state governments on all things. And, unlike Roger Williams, we KNOW that Madison read and appreciated Montesquieu.
Normally I would not give such a long and drawn out review of a book, but I wanted to do so here so as to emphasize Nussbaum's embarassing and facile scholarship. She avoids hard arguments, gets tons of facts wrong, and reads things through her own very distorted lens (her "Roger Williams" interpretation is unjustified as it is pervasive).
If you are interested in religion/state issues, I am sure that you can find a better 363 pages than this.
