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Liberty of Conscience: In Defense of America's Tradition of Religious Equality Paperback – January 5, 2010
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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.
The problem is there are people who are willing to prey (no pun intended) on the credulous and inflict severe emotional and physical damage while claiming merely to be freely exercising their religion. This is where the equality principle - and Nussbaum's thesis - founder. After all, the Supreme Court has held that religious belief cannot be regulated but religiously-motivated conduct can. This is fortunate. But what is really left of free exercise at that rate? There is far too much misery and torment inflicted in the real world - today, here, now - for Nussbaum to hide behind the sort of dismissiveness that taints this study. Alas, one need not be a "smug atheist" to worry about the sins being committed as people anoint themselves prophets and act on their beliefs to the detriment of others. We act as though the abuses like those of the Inquisition could not happen here or be visited on anyone nowadays. Wrong. Emphatically wrong. It would be nice to think the Establishment Clause should move over and make equal time for the Free Exercise Clause but the fact is, when people insist they have God's sanction to do truly depraved things, in the name of exercising their religion, notional commentary trivializes the harsh realities and, ultimately, the power some religions hold, for good or ill, over the minds of their adherents.
I heard Dr. Nussbaum speaking on Bill Moyers on April 18 and I was struck by how she simply avoided difficult questions - and Moyers was gentle with her. She simply sidestepped the issue of what you do about religious people who refuse to recognize that others are entitled to equality. If people were as reasonable as her argument requires, we would not have the arrogant side of the debate over establishments of religion, where the religious right asserts "we believers are in the majority so we can dictate to others." We would not have the ugly side of religious expression where self-anointed prophets prey on the credulous and the young, and demand power and obedience from women and children under threat of eternal damnation. Nussbaum is a bright woman but she seems to be ensconced in the proverbial ivory tower. Reality is a lot less pleasant - and less accommodating to principles of equality - than she seems to grasp.
Religion and superstition have prevailed over rational thought for many reasons. Apologists for absurd ideas (virgin birth, transubstantiation, etc.) like this author take their place in that history.
As an atheist and humanist, I could be insulted every time a religion makes the claim that I need "Jesus Christ" to live a happy and moral life. Instead, I prefer to deal with the preposterous and anti-historical claims of religious superstitions. Call me a smug atheist.