"I feel safer down here among the Christian savages along Narragansett Bay than I do among the savage Christians of Massachusetts Bay Colony," wrote Roger Williams, the founder of Rhode Island, shortly after his exile from polite society in 1635. Williams was one of the great heretics of what Europeans deemed a new world, not least because he bothered to learn the languages and customs of those he found already living there. He knew the Native Americans he admired were not Christians in any doctrinal sense, but he believed they lived according to a spirit of brotherly love more fully than the Puritans of Massachusetts from whom he'd fled. Martha Nussbaum argues that Williams's friendships with Narragansett leaders in Rhode Island left him with the kind of nuanced understanding of tolerance that would become the bedrock of American religious freedom--and, what's more, liberty of conscience. What is the distinction? Religion is a set of beliefs, ideas, rituals or customs. Conscience is more fundamental: the faculty of searching for the beliefs, ideas, rituals or customs that make up religion or, for that matter, the rejection of religion. Conscience is "precious," she says, whether it's exercised or not, an insight she credits Williams with recognizing long before John Locke--due, in large part, to Williams's fascination with the non-Christian savages he encountered in the process of colonizing their land.
Was Williams romanticizing the Native Americans he met, mostly leaders like himself who surely grasped the value of good relations with a powerful newcomer to their territory? Undoubtedly. Does Nussbaum, a professor of law, philosophy and divinity at the University of Chicago, take a similarly rosy view of what she calls "the lesson of the first Thanksgiving," "a distinctively American combination of principles" she refers to throughout Liberty of Conscience as "the tradition"? (emphasis mine) Surely. After all, "the tradition" hasn't had much staying power, as she demonstrates in chapters on anti-Mormonism, anti-Catholicism and even, quite recently, a Supreme Court hostile to the religious customs of Native Americans. The tradition isn't yet traditional, but Nussbaum's book, a fundamentally flawed but wise consideration of the subtle distinctions between "freedom" and "equality," may help cultivate it in years to come.
Meanwhile, Founding Faith--a new book by Steven Waldman, a former religion reporter--is the sort of carefully crafted crowd pleaser that trades Williams's liberty of conscience for the solace of centrism. "The Founding Faith," Waldman writes, "was not Christianity, and it was not secularism. It was religious liberty--a revolutionary formula for promoting faith by leaving it alone." Here we see the implications of the fine line Nussbaum draws between "freedom" and "equality." The former, on its own, can collapse into the sort of bland theism announced by an original catchphrase of Beliefnet, an online religion portal created by Waldman in 1999 and recently sold to Rupert Murdoch's News Corp: "Everyone believes in something." In political terms, such a sentiment results in the banal cold war faith of President Eisenhower, who dispensed with the Constitution's Establishment Clause with the curt declaration that "our government makes no sense unless it is founded on a deeply felt religious faith--and I don't care what it is."
Religious freedom protects one's right to believe, but too often it has been interpreted as doing no more than that, and not just by sleepy executives who prefer golf and war to the subtleties of civil liberties. "An 'establishment of religion,'" Nussbaum reminds us--that which was forbidden to the federal government by the First Amendment--"means that government has put its stamp of approval on some particular religion or group of religions, creating an official orthodoxy." It's a short leap from Waldman's implicit contention that government ought to promote faith to the late Chief Justice William Rehnquist's judicial notion of "nonpreferentialism," which holds that while government cannot favor one religion over another, it can certainly favor religion in general. Nonpreferentialism is itself an orthodoxy: call it religionism.
That idea didn't die with Rehnquist. Justice Antonin Scalia sharpened Rehnquist's point by arguing in a dissent in McCreary County v. American Civil Liberties Union of Kentucky (2005) that government may favor monotheistic religion, and Justice Clarence Thomas is ready to write off the Establishment Clause as it applies to the states altogether, arguing in a concurring opinion in Elk Grove Unified School District v. Newdow (2004) that while the federal government can't establish religion, states can. If one follows Thomas's logic, widely shared by evangelical conservatives, there is nothing stopping Texas from declaring itself Baptist territory--a prospect foreshadowed in the official platform of the Texas GOP, which declares the United States a Christian country.
How do we avoid that slide into Christian nationalism, from the centrism of Waldman to the monotheistic prejudice of Rehnquist and Scalia to the blatant Christian favoritism on display in President Bush's faith-based initiatives agenda? Waldman thinks he has a solution: "extremists" on both sides should admit that everybody is a little bit wrong and a little bit right. Conservatives should stop accusing separationists of being antireligion. Separationists should stop being so, well, separationist. Conservatives should stop claiming the founders were all Christians. Liberals should stop claiming the founders were all deists.
Much of Founding Faith, in fact, is dedicated to providing capsule biographies of the founders that in the end reveal nothing so much as the religious eccentricity of the Revolutionary era, when all the old ways were subject to re-examination and reconstruction, most famously in Thomas Jefferson's cut-and-paste Bible. Jefferson deleted all of Christ's miracles, making of the Messiah an ordinary man. (It's an iconoclastic impulse lost on the annual Congressionally sponsored National Prayer Breakfast, the program of which so violently wrenches out of context Jefferson's views on Jesus that it makes a President accused in his own day of atheism sound like a holy roller.) Benjamin Franklin, whom Waldman dubs "the Puritan New Ager," was also a Bible cutter, snipping Mary out of the Apostle's Creed; as for the "Angry Unitarian" John Adams, he emerges in Waldman's short portrait as deeply conflicted about the role of religion in the new nation.
But the relationship between the "spiritual journeys" of the founders, as Waldman describes the stories he tells, and contemporary governance is a mystery, unless you're an adherent of Waldman's "Founding Faith," otherwise known as the myth of origins: as a thing was created, so its essence forever remains. It's founder porn, a fetishistic fascination with the behind-the-scenes, under-the-covers, shifting whimsy of a group of men who set down their best ideas--the ones they hoped would actually endure--in a few readily available public documents. Founder porn even sounds naughty. "Were he alive today," Waldman writes of James Madison, "he would conclude, with awesome pride"--well, it doesn't really matter what Waldman thinks a resurrected Madison would conclude. Check out his awesome pride! That's either a euphemism for a member of Congress or the name of a Toby Keith cover band.
So it goes throughout Founding Faith, an entertaining, made-for-The-History-Channel book: a nod to the right, a nod to the left, dip both ways and do-si-do down the middle. Such folksy history can be harmless, and even worthwhile; Waldman's book, already widely touted as a truce in the culture wars, proposes a standard of religious freedom most of us would be content to live by. Atheists might feel slighted, but they would not be persecuted. Such is the nation that would provoke Madison's pride. But it is not the nation we live in.
Waldman wins his centrist peace by dismissing Christian conservatives' majoritarian bullying and secularists' insistence on separation of church and state as "extremes" that can be reconciled by the former acknowledging pluralism and the latter accepting that separation is neither strict nor meant to be universal. Doing so, however, would require fundamentalists to give up the most important claim of their faith--its exclusivity--and secularists to ignore history. Significantly, Waldman pays only brief lip service to an essential development in American law, the principle of incorporation--the Fourteenth Amendment's extension of the Bill of Rights to the states. Incorporation is the tidiest rebuttal to Justice Thomas's antebellum legal dreams and Waldman's contention that the protection of minority views as an essential function of separation is a "liberal fallacy."
Incorporation, notes Nussbaum, is "settled law." What's still in dispute is the meaning of freedom, the value of equality, the ends that can be justified in attempting to achieve both and just what separation is good for, anyway. In other words, it's all up for grabs. Waldman's centrism may appear to support a mildly liberal resolution; his book is, in the end, a defense of separation of church and state, very narrowly defined. But by slighting the enduring strength of religious conservatism, suggesting that the right's partisans and the left's separationists are evenly matched and assuming that his relatively liberal views are the happy mean, Waldman undermines the case for real religious freedom and liberty of conscience. Founding Faith is one of those books that find friends and enemies on both the left and the right and thus declare themselves balanced, as if freedom and equality were sandwich meats to be weighed on a scale.
Waldman's proposal is that we all be as nice and moderate as he is. Nussbaum's is that we be as broad-minded, rigorous and fair as Roger Williams. The most powerful argument of Liberty of Conscience lies in Nussbaum's careful reconstruction of Williams as a thinker at least as important to the tradition of liberty of conscience--the term she prefers to religion--as Locke and all the founders who followed. "We should not focus only on the eighteenth-century arguments of the framers," she writes, "ignoring this prior, and distinctly American, tradition, quintessentially embodied in Williams' The Bloudy Tenent of Persecution," a 1644 text that was remarkable for the empathy it extended to persecutors and persecuted alike and its call for government to refrain from enforcing orthodoxy. Recognition of good-faith differences of conviction, he believed, revealed a surer path to civil peace and liberty of conscience. The two values, so often seen as pitted against each other, were in Williams's account intertwined.
Williams, Nussbaum argues, is not only undervalued but also misunderstood, remembered, if at all, for "one (uncharacteristic) phrase he used once in a letter, the 'wall of separation' between religion and state." He's hardly remembered for even that; the phrase is most commonly attributed to Jefferson, who deployed it a century and a half later in his famous 1802 letter to the Danbury Baptists, a text that is such a scourge of Christian nationalism that a group of fundamentalist pastors from around the country recently sought to exorcise the spirit of Jefferson from the church's foundation stones. It was Williams, as devout as Jefferson was skeptical but just as heretical according to the standards of his time, who coined the phrase along with another still in use, and far more important to understanding his thought: "soule rape."
By this, Williams meant the imposition of beliefs or practices on another's conscience, another's ability to seek truth. Seeking truth, he believed, mattered as much--more, for the purposes of governance--than finding it. It was the act of inquiry, or even the potential for inquiry, that he viewed as the most essential quality of being human. Williams saw consciences as "delicate, vulnerable, living things," writes Nussbaum, a perception that led him to conclude that to ensure liberty of conscience government must go beyond simple neutrality. When Locke concluded that a government couldn't forbid, say, adult baptism unless it could show that adult immersion in water is in all cases harmful, he was upholding the principle of neutrality, whereby a law applies to everyone at all times in precisely the same way. Williams, however, maintained that in Rhode Island, at least, conscience could trump law in situations where an ostensibly neutral edict requiring oath-swearing, hat-doffing or military conscription could, in effect, impose an orthodoxy on an individual's conscience--soul rape. "In other words," writes Nussbaum, "Williams has forged the concept of accommodation.... Laws of general applicability have force only up to the point where they threaten religious liberty (and public order and safety are not at stake)."
Of course, "public order and safety" is a notoriously slippery standard. Nussbaum pays special attention to Minersville School District v. Gobitis, a 1940 Supreme Court ruling that held that the state may force Jehovah's Witnesses to salute the flag. Justice Felix Frankfurter, writing for the majority, declared that "national unity is the basis of national security," a perfect example of the majoritarian neutrality thinking favored by Locke and, as it happens, Justice Scalia. In 1940 it resulted in an anti-Witness mob in Maine reciting the opinion in public as a call to arms and a police chief in Virginia tying Witnesses together, forcing castor oil down their throats and parading them through town. The American Civil Liberties Union estimated that during the six months following the decision, vigilantes assaulted nearly 1,500 Witnesses across the country. In Texas, the ACLU called for the state's legendary Rangers to come to the aid of Witnesses under virtual siege.
Bodily harm goes beyond soul rape, of course, but when any authority of the state is applied to any religious orthodoxy--explicitly, as in the case of Minersville, which enforced an orthodoxy negatively, or implicitly, as in the current Supreme Court's sympathy for nonpreferentialism and even monotheism--soul rape all too often leads to broken bones, burned churches and worse. Indeed, Justice Tom Clark, writing for the majority in School District of Abington Township v. Schempp--the landmark 1963 case that ruled state-sponsored Bible reading in schools unconstitutional--argued that with regard to liberty of conscience, no issue is minor: "The breach of neutrality that is today a trickling stream may all too soon become a raging torrent."
There's that word again: neutrality. Leaving aside the crass acts of coercion winked at by bullies such as Scalia, we are still left with the question of how to balance the principle of neutrality admirably on display in the Court's decision in Abington and the principle of accommodation so lacking in its Minersville ruling. Here is where Nussbaum's reliance on philosophical and legal arguments at the expense of ethnographic data--stories from the real world--lets her, and the principle of separation, down.
Nussbaum rightly observes that for much of American history, separation of church and state served as a thin veil for anti-Catholicism. Contemporary fundamentalists who view the 1947 Supreme Court decision Everson v. Board of Education, in which Justice Hugo Black invoked Jefferson's version of the "wall of separation," as the insult to God that led America into decades of divine punishment point out that Black was once a Klansman and an anti-Catholic bigot. That's true. But Everson actually came down on the side of the New Jersey law that authorized school boards to reimburse parents who had paid for public buses to transport their children to private schools, including Catholic ones. In other words, the wall of separation, strictly applied, did not preclude accommodation; it demanded it. The Court ruled on the question of whether state aid for school transportation should be supplied to all parents, regardless of religion or the religion taught in their children's schools.
Nussbaum writes that Black "departs utterly (and wisely) from the separationist norm." But not, she could have noted, from the separationist ideal. Nussbaum considers that ideal a "bare idea" and one that, when applied too stringently by secularists, results in discrimination against religious folk. One of her chief examples is School District of Grand Rapids v. Ball (1984), in which the Supreme Court ruled that a program that provided remedial education for poor children at parochial schools was unconstitutional. Nussbaum thinks this ruling was wrongheaded, not least because transportation to public school for some 20,000 children was "not feasible." That ought to be the real issue--20,000 kids lacking transportation to public school. Instead, she focuses on what she views as an overly sensitive concern about indoctrination. Since no specific charges of religious proselytism were made, she wonders, what's the problem? Isn't this a case of too-zealous separationists stomping on a pragmatic solution?
Given this conclusion, one wonders how a Justice Nussbaum would rule on a legal challenge to the Justice Department's Fugitive Safe Surrender program, in which US Marshals move much of a city's court system into a black church and then recruit local media to advertise a special opportunity for fugitives to give themselves up to a church. At the church-court I attended in 2007 at The House of the Lord in Akron, Ohio, gospel music greeted fugitives who'd cleared the police at the megachurch's door and filled out a survey indirectly subsidized by the Justice Department that asks whether the locale was a factor in their decision to turn themselves in. Pastors stood ready to offer spiritual counsel, municipal judges quizzed defendants on what had moved them to surrender and a federal judge named John Adams was on hand to hear the most serious cases. Adams was flummoxed by questions about church/state separation--after all, he argued, the church had promised not to proselytize. But many members of the church, wearing US Marshals-supplied T-shirts and stationed at every exit, were doing just that, proving that as far as separation goes, policy isn't always practice.
According to Peter Elliott, the US Marshal who devised the program (which has been to nine cities, with plans for eight more in the works), many African-Americans are so wary of the justice system that church-court offers them their only chance at legal redemption. "If people surrendered at the police department, we wouldn't have to do this," he told me. "But they don't. And why don't they? Because they don't trust people like me. So I went back to the institution in my life that I trust the most. The church! If we brought the whole justice center out and put it in a church, people will turn themselves in."
If this justification seems like a more egregious abuse of the Establishment Clause than the school program the Supreme Court ruled against in Grand Rapids v. Ball, consider the logic embraced by Marshal Peter Elliott, Judge John Adams and Martha Nussbaum: in situations where the state fails to provide the most basic services--access to public schools, a court system in which one can reasonably expect to be judged on the facts of one's case rather than by the color of one's skin--it is acceptable to turn to religious institutions as proxy providers, and even to pour public money into them. It's quite possible that the parochial schools involved in Grand Rapids v. Ball never crossed the lines that were breached at The House of the Lord in Akron, where there was a cross outside the "court" building and gospel music within. But the breakdown of basic state functions is hardly a call for religious accommodation, regardless of whether the religious folk involved respect the separation of church and state. This is especially true in areas such as education and the courts, where powerful religious movements with heavy political representation champion privatization on the principle that public education and non-Christian courts are a grave offense before God.
That they do so might be news to Nussbaum; a weakness in this otherwise well-researched book is its utter lack of engagement with contemporary evangelical or fundamentalist ideas and sources. Nussbaum sticks to respectable texts by long-dead political philosophers, contemporary legal thinkers and fellow scholars. Following John Rawls, she argues that "liberty of conscience is one of the things reasonable people will value most." Indeed; but it is no insult to our fundamentalist brethren to acknowledge that many explicitly reject what they view as a humanist overemphasis on reason. Their right to hold that view should be considered as "precious," in Nussbaum's oft-repeated term, and as worthy of protection as her own embrace of an "overlapping consensus," "the idea of a moral and natural goodness that we can share while differing on ultimate religious ends...an idea that helps us think about our common life together much better than the unclear and at times misleading idea of separation."
Nussbaum sees separation as merely a tool, useful in some circumstances, pointless in others. The separation language in Justice Black's crucial Everson v. Board of Education decision, she argues, is nothing but "decorative." That's an odd dismissal from one who argues that state coercion (mandatory school prayer, for example) is not required to prove that religion has been established; establishment, she writes elsewhere, could just as easily occur through ostensibly "voluntary" prayer, or even merely an invitation to pray.
Nussbaum makes the same mistake as Judge Adams, conflating policy with practice, the letter of the law with the spirit that many believers bring to a public square they think was created by and for God--their God, who will discipline believers and unbelievers alike if his square isn't kept holy. Adams, a Bush appointee, may have his own reasons for blurring that distinction. More worrisome are those liberal defenders of religious equality such as Nussbaum and Waldman, who actually do know better and yet strengthen the hand of the theocons by underestimating and even minimalizing the scope of the Christian nationalist challenge. "At this point," Nussbaum writes, "school authorities know that they have to permit an exception for any child who conscientiously objects to participating" in the pledge. That's unlikely in a nation where explicitly religious--and often scientifically inaccurate--ideas about a matter as personal as sex are taught to millions of public school children.
Then again, the morality of sexual abstinence is one of those ideas that in many communities come under the heading of "overlapping consensus," just like monogamy, patriotism and Ike's old maxim about the necessity of faith, regardless of where it's placed. The overlapping consensus model extends an assumption of good faith to all parties. That's fine. But it fails when it rests too easily on assumptions about just what good faith is.