What is religious accommodation?Nussbaum argues that i) the world is difficult and deep and people's transcendental striving to understand the meaning of life should be respected; 2) this 'conscience' is a fragile quality that is very vulnerable to external destruction and oppression by state institutions; 3) fairness requires treating citizens equally and that means the state should actively ensure people's effective freedom of conscience by making sure that religious people do not face undue burdens for holding their beliefs. Following Roger Williams - founder of Rhode Island and the American tradition of religious pluralism - Nussbaum characterises state restrictions on practising one's religion as 'imprisonment' and laws requiring one to go along with an official religion as 'soul-rape'.
What does this mean? Nussbaum interprets equal protection of the liberty of conscience to require states to 'accommodate' the requirements of different religions (unless there is a compelling reason of state or conflict with other core rights). Accommodationism means that Quakers can claim exemption from compulsory military service, since it would place excessive and unequal burdens on them, given the centrality of their beliefs about pacifism in their lives. Similarly, members of religions with non-standard religious holidays cannot be required to work on them; religions that require special dress, sacramental drug use, animal sacrifice, etc. will all get special exemptions from general laws.
Bringing this tradition to Europe, Nussbaum argues that American accommodationism is the right way to go, and particularly criticises the established (national) churches that are still common in Europe. She argues that even in a weak form they still subordinate members of non-majority groups ('soul-rape').
A European liberal's responseIt seems to me 1) that the philosopher of American constitutional law doesn't really understand the European situation; 2) that liberty of conscience can be seen as a strong reason for restricting liberty of religion; 3) that equal liberty of conscience requires equal treatment of non-religious and religious claims through better general laws rather than special accommodations.
1) The American liberal tradition that brought about the accommodationist interpretation of the 1st Amendment protection (which is not the only way that American legal scholars interpret it!) developed in the context of competition between religions who each thought they were right. Even now American atheists only number between 5-20% (depending on whether you take self-professed atheists only or also those without a professed religion). But in Western and Northern Europe the infamous secularisation thesis really happened: we have seen a transition from a state majority religion (a la Westphalia) to polities with an absolute majority of non-religious citizens. Although many European states still have a formal religious establishment, our societies are overwhelmingly secular; in contrast America is formally secular but has an overwhelmingly religious (Christian) society. That the US president has to be a Christian is very strange to us. That professed atheists suffer seem from bigotry and social exclusion in America and are effectively barred from national public office is bizarre.
That difference is significant because our contemporary religious tensions are not really between say Islam and Christianity, but between religious piety and secularism. European polities are struggling to get their heads and institutions around an influx of immigrants who claim to really care about religion. I accept that we're not doing a very good job of that, and that we might do better if the immigrants were Christian and we had some overlapping cultural background that would ease our mutual comprehension. But the basic problem is that to the secular person living in a secular society, religion is hard to distinguish from culture, and claims about the transcendent go right over our heads. What we see are people behaving strangely in semi-organised ways. What we understand is 'personal lifestyle choice'. What we feel is bafflement combined with indifference.
To secular Europeans the very characterisation of religion asserted by Nussbaum, as individual transcendental striving something sacred that society should respect, seems in need of justification. It appears a rather specific and quintessentially American conception based closely on Protestant Christian traditions (e.g. Roger Williams) rather than, say, an anthropologist's 'culture-neutral' understanding of the character and meaningfulness of religion. Likewise, Nussbaum's framework presupposes religions to have a certain organisational form, analogous to Christian churches naturally, to bring these legal claims effectively. That fits some religions rather better than others, such as Daoism.
Altogether, the idea that personal transcendental struggle, organised in church-like groups, is a superior kind of activity that should get some kind of special rights, privileges or resources seems rather fishy to the European liberal and not very equal at all.
2) Furthermore, in the European context we are far more conscious than Nussbaum appears to be of how fragile conscience is, not only to state oppression but also to oppression and subordination by family and community. People relate to each other, not only to the state. Much of our scepticism of the new waves of religiosity is therefore legitimately concerned with the position of vulnerable 'members' (particularly women and children, but sometimes - with 'religions' like Scientology - everyone). We take the state's role in protecting liberty of conscience to sometimes require actively protecting people from religion (e.g. by making sure everyone really has the effective freedom and resources to leave their religious community) in order for the freedom to practise one's religion to have any credibility and legitimacy.
Of course this position can blur into a secular prejudice against religions one doesn't understand, as apparent in e.g. debates about the headscarf and women's rights, but this is a general problem of prejudice that is not particularly linked to religious issues (compare for example with the specious 'health' arguments made by sexists against the legalisation of the pill in many countries). The USA also provides some prima facie evidence, in its thriving market for religion, that religious upbringing in a pluralist environment is not necessarily all-determining, although it can obviously still be quite traumatising (though Nussbaum prefers to think of that aspect as 'character-building').
3) Finally, European liberals find it difficult to understand the US accommodationist position as liberal rather than as specifically American. In particular, accommodationism seems to either privileges members of religions or treats them as if they were disabled, neither of which respects people and their equality as liberalism should.
On the one hand, accommodationism can be seen to privilege the religious by giving them special exemptions from general laws that go against their principles which are not available to ordinary citizens who might also find the law appalling. Quakers in America get out of military service automatically but atheists would have to demonstrate the importance of their pacifism within a coherent sophisticated 'personal theology' that would satisfy a military review panel (which sounds as demanding as a PhD defence!). On the other hand, it can be seen to treat the religious as disabled by interpreting general laws as particularly burdening them, just as the current set up of our public transport system can be criticised for placing particular remediable burdens on those without majority-standard physical capacities. Accommodationism doesn't seem the right solution on either perspective, at least in the European tradition of liberalism.
First, Europeans tend to have more faith than Americans in politics rather than the courts to address our problems and conflicts, and that affects the form of European liberalism. The contents of a person's beliefs don't seem an appropriate matter for courts to evaluate (they have enough trouble with the relatively simple concepts of understanding and intention). In general the state should stay out of people's heads and law courts in particular don't seem to have the relevant expertise in psychology or theology that would make them an effective or fair instrument for such tests. Thus, Europeans tend to care more about getting our general laws and principles right. If anyone can give good arguments against their general reasonableness, we should change those parts of the law, not allow courts to create new group specific laws or exemptions.
John Locke proposed a principle of state neutrality that remains influential: If Latin is legal in schools, it should be legal in church. The European liberal simply inverses this principle to add that if Latin is legal in church, it should be legal in schools. E.g. if the sacramental use of peyote is to be permitted for anyone, a way must be found to make its legalisation a matter of a generally accessible principle i.e. available to all who wish to use it in a sacramental rather than purely recreational setting, without further examination of personal beliefs. Note that in this conception, the religious can be seen positively as pioneers whose sophisticated theology comes to the service of testing bad laws and generating new liberal principles, rather than as the foundation for a divisive identity politics.
Second, considering religions as disabilities, the European liberal sees accommodationism as potentially stigmatising, since the state identifies a person by their religious identity and the special burdens they bear. It is also gives an odd impression of religions, as something that just happens to you (like being hit by a truck and losing your legs), but also valuable to the individual (so society shouldn't try to cure you but cater to your new special needs). But leaving that contentious issue of free will and religion aside, it is surely far better to try to amend the failings of our social infrastructure towards a more universally accessible design (as we are now belatedly doing with our physical infrastructure in response to the legitimate challenges of the physically disabled). Accommodationism, which is strongly associated with judicial interpretation, would therefore be a last resort, after trying changes to general laws (and constitutions) with the pleasing democratic legitimacy that entails.
Nussbaum's responseHow does Nussbaum respond to these concerns, as expressed in the questions following her lecture? Not well in my view.
She first accuses Europe of having 'majority-blindness' in that the legitimate demands of members of the majority religion are invisible because already integrated into the institutions of the state. Even Denmark apparently, where only 4% of the population goes to church regularly, is to Nussbaum a majority Christian country because people still have church weddings and funerals. This really is not an adequate response to the empirical fact that most citizens in W. Europe don't give a damn (!) about religion - any religion - and are genuinely baffled by those who do. Even Turkey has been going through the same phenomenon, with pious Anatolians sweeping into Istanbul and upsetting the political mainstream's secular identity.
Nussbaum then switches from religion to ethnicity and accuses Europe of being in the grip of an anti-immigrant reaction of fear and disgust, of having a "complacent love of homogeneity that is scared of real difference". Certainly some of the populist reaction to immigrants in Europe has had that character (although a recent Gallup poll suggests that in many European countries, Islamic citizens actually have more faith in their governments than the average citizen). But taking up this tack means that Nussbaum's whole argument about religion - and its special transcendental quality and centrality in the lives of people goes out of the window. This seems a thesis about multi-culturalism rather than religious accommodation. This also seems even further removed from Nussbaum's professional expertise in its sociological and political and specifically European orientation.
On changing laws rather than granting accommodations, Nussbaum simply says that it is impracticable. However, when she talks about disability she takes it for granted that we can and should redesign our public architecture towards universal design, and can changing a few laws be any more complicated or expensive than that?
ConclusionBefore trying to proffer us advice - or rather instruction - Nussbaum would do well to recognise that Europe has a different relationship to liberalism and religion than her American tradition. Since she claims to be a 'political liberal', committed to finding an overlapping political consensus rather than making comprehensive claims based on a controversial doctrine (i.e. US Democratic Party liberalism), she would do well to take a harder look at the different components available in European liberalism for an overlapping consensus on the protection of equal liberty of conscience. It will necessarily take a different form from America's: less Protestant, less religious, and less legalistic.
I posted this before the Ground Zero Mosque farrago really snowballed into the politicisation of Islam across America. After seeing how readily very large numbers of Americans and politicians turned against Islam, Muslims, and people from Muslim countries as a whole on the most spurious and prejudiced grounds it seems to me that Nussbaum is not only wrong about Europe's attitude to religion. She seems also to have misread America's attitude to heterodox religion - more like suspicious toleration than generous accommodation. And she seems to have overestimated the ability of America's constitutional protections to restrict and civilise intolerant populist sentiments.