Martha Nussbaum Interview: Conversations with History: Institute of International Studies, UC Berkeley

Women's Rights, Religious Freedom, and Liberal Education: Conversation with Martha C. Nussbaum, Ernst Freund Distinguished Professor of Law and Ethics, University of Chicago; September 14, 2006, by Harry Kreisler

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The Role of Law

As you're working through these problems you put on your hat as a legal philosopher, and I want you to talk a little bit about that, because you see the law and the principles that have evolved over time, even from different settings, as something to think about as one navigates the progressive movement of women's rights as it comes up against the obstacles that might be in a religion. Talk a little about that, because law is central.

Feminism has always -- in America and in Europe, but especially in the U.S. -- relied on law as an avenue of social change. The first very famous legal feminist was Catharine MacKinnon, but there were so many. These women thought that what we really need, what we can make progress with, is better laws on rape, some laws on sexual harassment, understanding that sexual harassment is not about being sexy but is a practice of discrimination and subordination. All these things which were put gradually into the law so that now the most conservative federal judge is bound to recognize that the asymmetry of power in the workplace is an ingredient of thinking about sexual harassment.

That's something that has happened a lot in the U.S., and I think it's happened in part because law is a very high-prestige profession. People listen to what lawyers say and people have pretty good access to the legal system. It's not perfect, we need better public defenders and so on, but as the movie "The Accused" shows, where that woman who was gang raped got an adequate lawyer through the public defender system -- that was a real case and that really happened. When my law students see it they understand that there's something that they're involved in that is progressive and that can really change the law. That was the case that established that "no means no," that if you're wearing sexy clothes and you say no, that's no.

I have to say that it's not the same in India. In India people think it's a little naïve and starry-eyed to think that a main way of making change for women is to work on law reform in the way that I'm used to doing in the U.S. That's partly because law is not such a respected profession nationwide. Legal change is very slow and very cumbersome, and access to the courts is compromised by corruption. [If] a woman registers a rape complaint, that case will on average take nine years to get to court. Until you fix that, there's no point in changing a law, because the most fundamental thing she needs is to get on with her life, and so she needs prompt adjudication.

What is badly needed -- I've worked with a legal nongovernmental organization in India that works on feminist issues, and they [agree] -- is massive reform of legal education. They would like to try to start a private law school, because the state-run ones are very poor. They don't teach feminist approaches, they don't teach all this new stuff. The judiciary is very good nonetheless, so if you ever managed to get up to the Supreme Court and even the high courts of the states, then that's okay. This organization that I've worked with has a wonderful woman named Indira Jaisingh who's brought some extraordinary, important cases on sexual harassment before the court, but it's the lower levels where women are floundering and doing very badly. So, one first has to have the rule of law and a smooth, efficient legal system before feminists can hope that that's the way they'll change things.

This problem of the role of religion and the role of the state, their interactions and so on, is a problem that you are grappling with now. Is that correct? Tell us a little about your research about what it is to have freedom of religion and of religious practice.

This is a rare case where I'm focusing on the American tradition, and I did it because after the election of 2004 I felt I wanted to make an intervention into the public debate, because people are increasingly polarized around religious matters and they often misunderstand certain things about the tradition. Religious people think that the idea of separation of church and state is an idea that means that religion is being marginalized, it's being trivialized, it's being said to be unimportant. What I set out to show is that there is a long tradition -- you could associate it particularly with Madison, although it goes back further to the seventeenth century and Roger Williams -- that says no, the central issue is one of fairness. We want all to be citizens of equal standing in the public realm. We want not just adequate liberty but equal liberty. What that means is that any kind of religious establishment or religious orthodoxy in public life is a problem, because it jeopardizes that equal standing.

Madison was thinking about a law in Virginia, which seems very benign and it's what lots of European countries have now, which is that there would be a tax for the benefit of the Anglican Church, but if you have some other church you could always choose instead to [benefit] your church. And he said no, by making the Anglican Church the central one, this makes a statement that our society is basically an Anglican society and other people don't enter the polity, as he put it, on equal conditions.

That line has been very important in the Supreme Court's thinking about establishment and why establishment is bad. I think that "equality" line is the one to press when we think about why school prayer might be bad. It's not that we think, oh, children are contaminated by prayer, but it that any prayer you choose is going to include some and exclude others. One of the landmark cases was a young boy in Pennsylvania who decided on the day of required Bible reading that he was going to bring in a copy of the Koran, and he read from the Koran. Well, he got sent to the principal's office and his principal took out after him, wrote to every college he'd ever applied to and said not to admit this ...

This was 1960s ...

This was 1960s, Abbington v. Schempp. It was this kid, Ellery Schempp, who's now a distinguished physicist, and he was obviously a brilliant kid. It's one of the rare cases where the kid actually brought the case. The parents were only kind of helping him out. He sent ten dollars to the ACLU and he said, "Will you take my case?" And they did, and what emerged from that was that, of course, the public schools -- oh, they thought that they were being neutral, but they were really Protestant schools. They were choosing, of course, the King James Bible, not the Catholic Bible, and in his case the Koran just filled them with horror. There were no Muslims, he wasn't a Muslim, he was just trying to make a point about pluralism. The point is that any kind of religious observance you choose is always going to be somebody's and not somebody else's, and fair to some and excluding of others.

I want people to think about that and what that implies. If we want to separate religion from the public realm it's not because we hate religion or because we think that it doesn't belong in human life, it's because it just can't be done in a way that's fair to all and gives all equal liberty. That also means that we shouldn't impose special burdens on religion. For example, suppose we had a situation in which the public sewer system didn't serve the churches, and the fire department wouldn't come to put out a fire in a church? You might think separation of church and state requires that situation, right? -- because the state is the fire department and here's the church, well, then they shouldn't be mixed.

That's why separation is not a very helpful idea, but equality is a much more helpful idea. What we can see is it just would not be fair to religious people if they didn't get these basic life protections of the sewer system and the fire department. Of course, there's a lot of gray area in the middle: do they get transportation to parochial schools on the public buses? All these things are very contested, but the right way of thinking about it is we don't want to have a state that burdens religion in a way that the non-religious are not burdened. We also don't want to have a state that favors religion or any particular religion. So, that's the line, and it's a line that the court, the mainstream, the center of the Supreme Court has been pushing for a long time. These things change, and I think right now it is in jeopardy, and so I think it's time to reaffirm the tremendous importance of that "equal status" idea.

Next page: Conclusions

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