Jeff Sharlet reviews Liberty of Conscience by Martha Nussbaum and Founding Faith Providence, Politics, and the Birth of Religious Freedom in America by Steven Waldman, in The Nation:
Waldman wins his centrist peace by dismissing Christian conservatives’ majoritarian bullying and secularists’ insistence on separation of church and state as “extremes” that can be reconciled by the former acknowledging pluralism and the latter accepting that separation is neither strict nor meant to be universal. Doing so, however, would require fundamentalists to give up the most important claim of their faith–its exclusivity–and secularists to ignore history. Significantly, Waldman pays only brief lip service to an essential development in American law, the principle of incorporation–the Fourteenth Amendment’s extension of the Bill of Rights to the states. Incorporation is the tidiest rebuttal to Justice Thomas’s antebellum legal dreams and Waldman’s contention that the protection of minority views as an essential function of separation is a “liberal fallacy.”
Incorporation, notes Nussbaum, is “settled law.” What’s still in dispute is the meaning of freedom, the value of equality, the ends that can be justified in attempting to achieve both and just what separation is good for, anyway. In other words, it’s all up for grabs. Waldman’s centrism may appear to support a mildly liberal resolution; his book is, in the end, a defense of separation of church and state, very narrowly defined. But by slighting the enduring strength of religious conservatism, suggesting that the right’s partisans and the left’s separationists are evenly matched and assuming that his relatively liberal views are the happy mean, Waldman undermines the case for real religious freedom and liberty of conscience. Founding Faith is one of those books that find friends and enemies on both the left and the right and thus declare themselves balanced, as if freedom and equality were sandwich meats to be weighed on a scale.