Friday, June 20, 2014

Nussbaum on Liberty of Conscience

In various airports and airplanes over the past few weeks I read University of Chicago professor Martha Nussbaum’s (University of Chicago) book on religious equality in America entitled Liberty of Conscience (2008).  Even though this book predates the Hobby Lobby case, it addresses a number of underlying issues at play in the case. 

Liberty of Conscience

More after the break.

 

Nussbaum sets forth six basic principles that she uses throughout the book:

The Equality Principle. All citizens have equal rights and deserve equal respect from the government under which they live.

 

The Respect-Conscience Principle. Respect for citizens requires that the public sphere respect the fact that they have different religious commitments (and, as time goes on, at least some of this gets extended to their nonreligious commitments in the area of life’s ultimate meaning and ethical basis), and provide a protected space within which citizens may act as their conscience dictates….

 

The Liberty Principle. Respect for people’s conscientious commitments requires ample liberty….

 

The Accommodation Principle. The Equality Principle, the Respect-Conscience Principle, and the Liberty Principle, taken together suggest that sometimes some people (usually members of religious minorities) should be exempted from generally applicable laws for reasons of conscience…. 

 

The Nonestablishment Principle.  The Equality Principle and the Respect-Conscience Principle require a further principle:  The state may make no endorsements in religious matters than would signify an orthodoxy, creating an in-group and out-groups….

 

The Separation Principle.  The Equality Principle, the Respect-Conscience Principle, the Liberty Principle, and the Nonestabilishment Principle can be implemented only if we accept the principle that a certain degree of separation should be created between church and state on the whole, church and state have separate spheres of jurisdiction…. (22-25, emphasis in original) [Earlier Nussbaum clarifies that “[n]obody really believe in separation taken literally across the board….Imagine what it would be like if the fire department refused to aid a burning church, if churches didn’t have access to the public water supply or sewer system [etc.] …. Such proposals seem horribly unfair. (11)]

Applying the Accommodation Principle without offending any of Nussbaum’s other principles is a difficult task. Nussbaum describes the concept of accommodation as “[l]aws of general applicability have force only up to the point where they threaten religious liberty (and the public order and safety are not at stake.)” (50).  Nussbaum also states that “if generally applicable laws are understood to have no exemptions, what really becomes of religious liberty?” (124)   In applying her principles, Nussbaum says that the “key thread holding all the concepts together is the idea of equality, understood as nondomination or nonsubordination (which might sometimes require differential treatment.)” (21).

Nussbaum follows discussion of her principles with over 300 pages of history, commentary, and application.  While much of the book focuses on applying her principles to past Supreme Court cases, in the last chapter, “Contemporary Controversies,” she addresses a number of current issues such as the use of “Under God” in the Pledge of Allegiance and Gay Marriage. 

Liberty of Conscience predates the Hobby Lobby case, but Nussbaum signed on to a brief of amici curiae by Church-State scholars in support of the government’s position in the Hobby Lobby case.  Thus, it seems clear that she does not think that Hobby Lobby deserves an accommodation in this case.  The Church-State scholar brief focuses on the costs to the employees (who may have different beliefs than the Hobby Lobby founders) if Hobby Lobby is granted an accommodation.

Stanford law professor Michael McConnell (who Nussbaum cites approvingly in other contexts in her book) takes the opposing side, arguing that the government does not have a compelling interest in the Hobby Lobby case, and even if the government did have a compelling interest, there are a number of less restrictive means available, including:  

The government could extend the same accommodation to the small number of businesses with this conscientious objection that it already has to religious employers. It could subsidize the contraceptive coverage directly. Employers with conscientious objections could compensate for not providing contraceptive coverage by adding other valuable coverage to the employees’ plans, thus ensuring that the employer receives no financial benefit from the objection and that the employees bear no net burden. The government could allow employers to substitute cash for coverage on a tax-free and tax-deductible basis.

Reasonable people have different opinions on the Hobby Lobby case, but Martha Nussbaum’s book Liberty of Conscience will make its reader more informed on a number of the underlying issues.  While I am on this topic, I should probably also read Brian Leiter's Why Tolerate Religion?  

http://lawprofessors.typepad.com/business_law/2014/06/nussbaum-on-liberty-of-conscience.html

Books, Constitutional Law, Current Affairs, Haskell Murray, Religion | Permalink

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