Equality, Conscience, and the Liberty of the Church: Justifying the Controversiale Per Controversialius
Patrick McKinley Brennan
Villanova University School of Law
April 3, 2009
Villanova Law Review, Forthcoming
Villanova Law/Public Policy Research Paper No. 2009-09
This paper considers the central normative claim of Martha Nussbaum's Liberty of Conscience: In Defense of America's Tradition of Religious Equality, viz., that the U.S. Constitution's religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum's argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably contested concept of the liberty of the church(es). The paper concludes by arguing, with the help of Jacques Maritain and William Galston, that the political sphere is better shaped (and limited) by robust respect for the equality of humans, freedom of conscience, and the liberty of the churches (and certain other groups), but without our either pretending that any of them is not reasonably contestable or attempting to mold churches (and certain other groups) in the image of the state. Along the way, the paper evaluates Nussbaum's claim that Maritain was perhaps the first political liberal.
Number of Pages in PDF File: 23
Keywords: Conscience, equality, religion, pluralism, establishment, free exercise, freedom of the church, Rawls, political liberalism, range property, MaritainAccepted Paper Series
Date posted: April 3, 2009
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