In her post of July 11, “Veiled Threats?” and her subsequent response to readers, Martha Nussbaum considers the controversy over the legal status of the burqa — which continues to flare across Europe — making a case for freedom of religious expression. In these writings, Professor Nussbaum applies the argument of her 2008 book “Liberty of Conscience,” which praises the American approach to religious liberty of which Roger Williams, one of the founders of Rhode Island Colony, is an early champion.
Williams is an inspiring figure, indeed. Feeling firsthand the constraint of religious conformism in England and in Massachusetts Bay, he developed a uniquely broad position on religious toleration, one encompassing not only Protestants of all stripes, but Roman Catholics, Jews and Muslims. The state, in his view, can legitimately enforce only the second tablet of the Decalogue — those final five commandments covering murder, theft, and the like. All matters of worship covered by the first tablet must be left to the individual conscience.
Straightforward enough. But in the early years of Rhode Island, Williams faced quite a relevant challenge. One of the colonists who fled Salem with him, Joshua Verin, quickly made himself an unwelcome presence in the fledgling community. In addition to being generally “boysterous,” Verin had forbidden his wife from attending the religious services that Williams held in his home, and became publicly violent in doing so. The colony was forced into action: Verin was disenfranchised on the grounds that he was interfering with his wife’s religious freedom. Taking up a defense of Verin, fellow colonist William Arnold — who would also nettle Williams in the years to follow — claimed the punishment to be a violation of Verin’s religious liberty in that it interfered with his biblically appointed husbandly dominion. “Did you pretend to leave Massachusetts, because you would not offend God to please men,” Arnold asked, “and would you now break an ordinance and commandment of God to please women?” In his Salem days Williams himself had affirmed such biblical hierarchy, favoring the covering of women’s heads in all public assemblies.
A colony whose founding charter was signed by more than one woman was apparently not willing to accept the kind of male violence on which the Bible is at least indifferent. Some suggested that Mrs. Verin be liberated from her husband and placed in the community’s protection until a suitable mate could be found for her. That proposal was not taken up, and it was not taken up because Mrs. Verin herself declared that she wished to remain with her husband — a declaration made while she was literally tied in ropes and being dragged back to Salem by a man who had bound her in a more than matrimonial way.
The Verin case illustrates the weakness of the principle on which Nussbaum depends. Liberty of conscience limits human institutions so that they do not interfere with the sacrosanct relationship between the soul and God, and in its strict application allows a coerced soul to run its course into the abyss. In especially unappealing appeals to this kind of liberty, bigots of all varieties have claimed an entitlement to their views on grounds of tender conscience. Nussbaum recognizes this elsewhere. Despite her casual attitude toward burqa wearers — a marginal group in an already small minority population — she responds forcefully to false claims of religious freedom when they infect policymaking, as in her important defense of the right to marry.
The burqa controversy revolves around a central question: “Does this cultural practice performed in the name of religion inherently violate the principle of equality that democracies are obliged to defend?” The only answer to that question offered by liberty of conscience is that we have no right to ask in the first place. This is in essence Nussbaum’s position, even though the kind of floor-to-ceiling drapery that we are considering is not at all essential to Muslim worship. The burqa is not religious headwear; it is a physical barrier to engagement in public life adopted in a deep spirit of misogyny.
Lockean religious toleration, a tradition of which Nussbaum is skeptical, expects religious observance more fully to conform to the aims of a democratic polity. We might see the French response to the burqa as an expression of that tradition. After a famously misguided initial attempt to do away with all Muslim headwear in schools and colleges, French legislators later settled down to an evaluation of the point at which headwear becomes an affront to gender equality, passing most recently a ban on the niqab, or face veil—which has also been barred from classrooms and dormitories at Cairo’s Al’Azhar University, the historical center of Muslim learning. It seems farcical to create a scorecard of permissible and impermissible religious garb — and as a youth reading Arthur C. Clarke it is not what I imagined the world’s legislators to be doing with urgency in the year 2010 — but we must wonder if it is the kind of determination that we must make, and make with care, if we are to come to a just settlement of the issue.
If we take a broader view, though, we might see that Lockean tradition as part of the longstanding wish of the state to disarm religion’s subversive potential.
Controversies on religious liberty are as old as temple and palace, those two would-be foci of ultimate meaning in human life that seem perpetually to run on a collision course. Sophocles’s Antigone subscribes to an absolute religious duty in her single-minded wish to administer funeral rites to her brother Polyneices. King Creon forbids the burial because Polyneices is an enemy of the state, an attempt to bring observance into harmony with political authority. Augustine of Hippo handles the tension in his critique of the Roman polymath Varro. Though the work that he is discussing is now lost, Augustine in his thorough way gives us a rigorous account of Varro’s distinction between “natural theology,” the theology of philosophers who seek to discern the nature of the gods as they really are, and “civil theology,” which is the theology acceptable in public observance. Augustine objects to this distinction: if natural theology is “really natural,” if it has discovered the true nature of divinity, he asks, “what is found wrong with it, to cause its exclusion from the city?”
Debates on religious liberty seem always to be separated by the gulf between Varro and Augustine. Those who follow Varro tolerate brands of religion that do not threaten civil order or prevailing moral conventions, and accept in principle a distinction between public and private worship; those who follow Augustine tolerate only those who agree with their sense of the nature of divinity, which authorities cannot legitimately restrict. At their worst, Varronians make flimsy claims on preserving public decorum and solidify the state’s marginalization of religious minorities — as the Swiss did in December 2009 by passing a referendum banning the construction of minarets. Augustinians at their worst expect the state to respect primordial bigotries and tribal exceptionalism — as do many of this country’s so-called Christian conservatives.
Might there be a third way? If, as several thinkers have suggested, we now find ourselves in a “post-secular” age, then perhaps we might look beyond traditional disputes between political and ecclesiastical authority, between religion and secularism. Perhaps post-secularity can take justice and equality to be absolutely good with little regard for whether we come to value the good by a religious or secular path. Our various social formations — political, religious, social, familial — find their highest calling in deepening our bonds of fellow feeling. “Compelling state interest” has no inherent value; belief also has no inherent value. Political and religious positions must be measured against the purity of truths, rightly conceived as those principles enabling the richest possible lives for our fellow human beings.
So let us attempt such a measure. The kind of women’s fashion favored by the Taliban might legitimately be outlawed as an instrument of gender apartheid — though one must have strong reservations about the enforcement of such a law, which could create more divisiveness than it cures. The standard of human harmony provides strong resistance to anti-gay prejudice, stripping it of its wonted mask of righteousness. It objects in disgust to Pope Benedict XVI when he complains about Belgian authorities seizing church records in the course of investigating sexual abuse; it also praises the Catholic Church for the humanitarian and spiritual services it provides on this country’s southern border, which set the needs of the human family above arbitrary distinctions of citizenship. The last example shows that some belief provides a deeply humane resistance to state power run amok. To belief of this kind there is no legitimate barrier.
Humane action is of course open to interpretation. But if we place it at the center of our aspirations, we will make decisions more salutary than those offered by the false choice between state interest and liberty of conscience. Whitman may have been the first post-secularist in seeing that political and religious institutions declaring certain bodies to be shameful denigrate all human dignity: every individual is a vibrant body electric deeply connected to all beings by an instinct of fellow feeling. Such living democracy shames the puerile self-interest of modern electoral politics, and the worn barbarisms lurking under the shroud of retrograde orthodoxy. Embracing that vitality, to return to Nussbaum’s concerns, also guides us to the most generous possible reading of the First Amendment, which restricts government so that individual consciences and groups of believers can actively advance, rather than stall, the American project of promoting justice and equality.
Feisal G. Mohamed is an associate professor of English at the University of Illinois. His most recent book, “Milton and the Post-Secular Present,” is forthcoming from Stanford University Press.
Full article: http://opinionator.blogs.nytimes.com/2010/07/28/the-burqa-and-the-body-electric/