Week 6 Response Paper: Religious Liberty

Respect for equality in the context of religious liberty is a distinctive feature of the American tradition, the modern understanding and application of which has evolved gradually through the experience of the American people in a diverse society. Nussbaum describes several distinguishing principles present in the modern American religious tradition, referencing equality as the unifying focus: nonestablishment of state orthodoxy and separation of church and state are intended to prevent the formation of unequal “in-groups” and “out-groups,” while the special treatment of minorities allows for legal accommodation and affirmative action to ensure fair equality in American society. The decisions in court cases such as Sherbert and Allegheny County successfully defended the “equal freedom…to worship in [one’s] own way” and the need to respect “individual religious choice,” and are central to demonstrating Nussbaum’s point that Americans, throughout history, have made progress in developing a framework through which equal liberty can be manifested in the legal system (Nussbaum 17, 18). This story of progression sharply contradicts Tierney’s suggestion, however, that history and social circumstances, rife with persecution and condemnation of heretical thought, have had a pernicious influence on the concept of equality encapsulated in founding documents such as the US Bill of Rights. In Tierney’s words, national experience has “distorted understanding of the original revelations,” the best solution for which is a return to the intentions of these documents (Tierney 45). There is significant evidence to support this claim; the exclusion of religious minorities such as Quakers and Mormons throughout American history forces one to consider the extent to which American religious institutions were and continue to be unequal. Even Nussbaum acknowledges that restriction of equal treatment occurs when particular denominations—such as extremist Islamic sects—are perceived by the public to be threatening to society. Yet if it is indeed true that the original American tradition of equal liberty has been corrupted by misapplication of the spirit of the founders, the founding national documents would necessarily have to encompass, even surpass the meaning and depth of the modern conception of equal liberty. This notion cannot easily be proven, due to the plurality of differing views that were behind the writing of the texts. One can also account for the controversy over the Establishment and Free Exercise Clauses as revealing the incompatibility of original documents with modern society. Furthermore, Nussbaum suggests that such a reading contradicts with the founders’ intention of establishing a broad legal framework on which new interpretations of fundamental principles would later be founded according to the changing social context, in light of their own refusal to abide by traditional ways of thinking (Nussbaum 30). To declare that American history has caused a backslide in the implementation of the concept of equal liberty, may be to fail to recognize that despite periods of inequality, the American tradition has been so entwined with the advancement of equality and liberty as to make them the distinguishing features of a national religious culture.