This essay critiques Professor Martha Nussbaum's book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (2008). Nussbaum's thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of equal respect-that "[a]ll citizens have equal rights and deserve equal respect from the government under which they live." Nussbaum insists that equal respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free-exercise and establishment issues in light of this principle, concluding that the tradition of religious equality is under threat and calling for renewed vigilance in its defense. This essay criticizes Nussbaum's elevation of the principle of equal respect to supreme normative status. It claims that Nussbaum's single-minded focus on equal respect distorts and misunderstands the conflicts actually at issue in many religious liberty disputes. The essay focuses specifically on the inadequacies of her assessment of two prominent religious liberty cases, one in the free exercise and the other in the established context. This essay concludes that there are reasons for deep skepticism about Nussbaum's approach as a comprehensive theory of the religion clauses.
Marc O. DeGirolami, No Tears for Creon, 15 LEGAL THEORY 245 (2009).