Roger Williams and Martha Nussbaum on Religious Liberty

Paul Harvey

Some must reading for American religious historians, and all interested in historical models for religious liberty: Martha Nussbaum's review of James Calvin Davis, On Religious Liberty: Selections from the Works of Roger Williams. It's less a review, actually, than a substantial philosophical exploration and reviving of Williams as a thinker who, so Nussbaum argues, both preceded and excelled Locke in exploring the rights of conscience.

The article is too rich to give justice to here. Briefly, Nussbaum provides a philosophical summary of the depth of Williams's commitment to rights of conscience, a more profound notion than just "toleration." Beyond that, Nussbaum uses Williams to critique the "wall of separation" idea, insisting instead that "we must respect one another's freedom and equality, the deep sources of conscience that lead us through life. We will do this only if we keep religious orthodoxy out of our common political life. But we must base that life on ethical principles that, for many of us, also have a religious meaning and justification." She continues: "That we so obsessively focus on the religions of political candidates, as contrasted with moral virtues that we all can share, is a fact of American political life that we should regret and attempt to change."

Throughout, Nussbaum contrasts those who demand "orthodoxy" and "order," both in Williams's time and our own, with Williams's own more capacious views:

The Europeans of Massachusetts reacted to insecurity by enforcing orthodoxy of religious belief and practice. Roger Williams's lifelong intellectual adversary John Cotton, pastor of the First Church of Boston and one of Massachusetts's most influential religious leaders, wrote copiously in defense of religious persecution, arguing that it was necessary for civil order. It was also God's will, Cotton said, in order to separate the diseased element of society from the healthy element. Heretics and dissidents are like Satan in our midst. Even if they behave peaceably, they are enticements to sin. Cotton urged imprisonment, banishment, and other harsh penalties for the unorthodox.

Such reactions to insecurity are sadly familiar in America's history: in situations of insecurity, we are all too ready to project the causes of instability onto other people, grabbing hold of Cotton's seductive metaphor of a stain in our midst (his reply to Williams's great book was called The Bloody Tenent, Washed, and Made White in the Bloud of the Lambe) that must be removed if we are to resist corruption. What makes Williams of particular interest today is not just the high quality of his philosophical work. It is also the way in which he offers an alternative to the paranoid response to uncertainty, confidently urging on his readers attitudes of mercy, gentleness, reasonableness, and civility--all words that recur with obsessive frequency throughout his two great philosophical dialogues.

Nussbaum also contrasts Locke's more limited notions ("Locke seems to think that equal liberty is compatible with a religious establishment") with Williams's argument for allowing exceptions to general laws for conscience's sake, a debate that resonates in recent Supreme Court decisions:

The contrast between Williams and Locke is still with us, in the form of divergent standards that have played a role in recent Supreme Court debates. The Williams idea was long a hallmark of free exercise jurisprudence, in the form of what has come to be known as the "Sherbert test," after an important case in 1963 involving a woman who was fired because her Seventh-Day Adventist beliefs forbade her to work on Saturday, and was then denied unemployment compensation on the grounds that she had refused "suitable work." The Court, finding in her favor, said that government may not impose a "substantial burden" on a person's free exercise of religion without a "compelling state interest." The case had an important equality aspect: the fact that Saturday and not Sunday was the required day put unfair pressure on this minority woman, pressure that the majority did not have to face.

This was our legal standard for some years, but in 1990 the Lockean position took control, with Justice Scalia's controversial opinion in Employment Division v. Smith, a case involving Native American peyote use. Scalia declared that laws must rule exceptionlessly, so long as they were neutral and not discriminatory. Like Locke, Scalia is interested in legal neutrality: when a Florida community passed an ordinance forbidding ritual animal sacrifice he struck it down, holding that the fact that they allowed animals to be slaughtered in all sorts of other ways showed that they were simply targeting Santeria worshipers. But he does not believe that courts should go beyond this, and insist on the protection of conscience against laws that are not hostile--although he is willing to allow the legislature to pass such exemptions if it wants. What this conflict over accommodation is really about is the equality of minorities in a majority world. Rules about workdays, drugs, and a host of other matters favor the majority--so alcohol is legal and peyote is not, Sunday is the usual day of rest and Saturday is not. Williams understood the vulnerability of minority conscience in a world of majority rule, and his more protective standard should, in my view, be restored.