No Tears For Creon

Marc O. DeGirolami, St. John's University School of Law

Abstract

This essay critiques Professor Martha Nussbaum’s recent book, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY (Basic Books 2008). Nussbaum’s thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of “Equal Respect” – that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that Equal Respect runs like a thread throughout the tradition and that all other conceivable values of religious liberty are subordinate to it. After setting out her theoretical claims, Nussbaum considers the views of several historical figures and argues that each of these luminaries argued, at bottom, for something very much akin to her ultimate principle. Nussbaum also examines a host of free exercise and establishment issues in light of this principle, concluding that the tradition of religious equality in this country is under threat and calling for renewed vigilance in its defense.

This piece takes issue with Nussbaum’s methodology. Elevating the principle of Equal Respect to supreme normative status distorts and misunderstands the conflicts actually at issue in many religious liberty disputes. In order to mount a satisfying methodological challenge to a thinker of Nussbaum’s stature and influence, the essay considers a number of Nussbaum’s previous writings – especially her writings about basic capabilities theory and equality – in order to make better sense of Nussbaum’s claims in Liberty of Conscience and to locate them within her overall contributions to political theory. Thereafter, the essay focuses specifically on the inadequacies of her assessment of one case in particular – Wisconsin v. Yoder. It traces these failings back to her previous writings, concluding that there are reasons for skepticism about Nussbaum’s approach as a comprehensive theory of the religion clauses.