Blog from the Capital

Author-philosopher Martha Nussbaum has a new book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality. She was a guest on Bill Moyers' Journal over the weekend promoting it, and argued that the biggest threats to our tradition of respecting freedom of conscience are "these insistent public statements that define the country as a Christian country."

And how are we supposed to combat the persistence of the religious right and others pressing for such a definition? Drop all the "separation of church and state" talk, she says, and replace it with an appeal to basic fairness.

[I]f we use the language of fair play and equality, rather than just the language of separation of church and state, we can understand why we don't want certain kinds of manifestations of Christianity in public life.

It's not because we don't think your religion is important or deep. It's because we want to be fair to other people who have different religious. So we keep religion out of the public square to the extent that we do for reasons of fairness, not because we hate religion or think it unimportant.

BILL MOYERS: You seem to be saying let's retire that metaphor of the wall of separation between church and state.

MARTHA NUSSBAUM: You know, it wasn't really part of our constitutional framing. None of the framers actually used that phrase at all. They used the language of liberty and equal rights with conscience. And separation, I think, doesn't guide our thought that well. Because actually, if you think about it, no one believes in absolute separation of church from state.

I don't necessarily disagree. For many church-state arguments, a chorus or two of the Golden Rule can certainly be more persuasive than "wall of separation" imagery, especially as the latter is so often misrepresented and caricatured (as removing religion from the public square and the like). I find myself referring to it less and less.

Still, let's not kid ourselves. Disputes about religion in public life have been part of America on some level ever since its founding. There is no magic wand of rhetoric here. It's not as if the folks who insist on state-sponsored religious displays, school vouchers, and faith-based funding have never heard of fairness and equality. They simply don't agree with those of us who feel led by the principle of equality to oppose such government involvement in religion. Nussbaum's theory is that many of them "really haven't thought through the issue of fairness". Surely, though, the Supreme Court - whose Hein decision she points to as a most troubling development - has considered it, and decided to disappoint her nonetheless.

Persistent education, persuasion and appeals to freedom and equality are essential to ensuring religious liberty for all. But sometimes drawing a line (or maintaining a metaphorical wall) is necessary as well. So, I'm not sure abandoning the language of separation altogether is such a good idea. Is that a mistake?