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NUSSBAUM ON RELIGIOUS DIVERSITY AND THE LAW

Martha Nussbaum's recent book Liberty of Conscience1 has as its subtitle: "In Defence of America's Tradition of Religious Equality". In this book, American politics with respect to religion is characterized as the correct balance between two principles: on one hand, the separation between church and state expressed in the 'non-establishment clause' of the Constitution, which states that "Congress shall make no law respecting an establishment of religion"; and, on the other hand, extensive religious freedom expressed in the 'accommodation principle', which grants dispensations from generally applicable laws on grounds of conscience. In comparison, the situation in Europe is characterized as unbalanced, either in the sense of too much involvement between the state and a particular church (or churches), or in the sense of too much curtailment of religious freedom, or even an anti-religious tendency. Nussbaum tries to show that this balanced view was behind the spirit of the Constitution from the very beginning. She talks about the guiding star of the tradition, also described as the old analytic framework set up by the framers of the American Constitution (21). The original framework became more and more pronounced through successive interpretative and legislative efforts, in relation to lawsuits brought before the courts, especially the Supreme Court. Although this balance has been and still is under threat today, it is Nussbaum's contention that we here in Europe could learn a lot from the American "tradition" of religious equality. The United States is seen as a bold experiment not simply in religious freedom, but in religious equality (12). I suppose that these interpretations as to how the balance was originally intended and its implications will be a matter of contention. But I am not