Martha Nussbaum in The New York Times:
In Spain earlier this month, the Catalonian assembly narrowly rejected a proposed ban on the Muslim burqa in all public places — reversing a vote the week before in the country’s upper house of parliament supporting a ban. Similar proposals may soon become national law in France and Belgium. Even the headscarf often causes trouble. In France, girls may not wear it in school. In Germany (as in parts of Belgium and the Netherlands) some regions forbid public school teachers to wear it on the job, although nuns and priests are permitted to teach in full habit. What does political philosophy have to say about these developments? As it turns out, a long philosophical and legal tradition has reflected about similar matters.
Let’s start with an assumption that is widely shared: that all human beings are equal bearers of human dignity. It is widely agreed that government must treat that dignity with equal respect. But what is it to treat people with equal respect in areas touching on religious belief and observance?
We now add a further premise: that the faculty with which people search for life’s ultimate meaning — frequently called “conscience” ─ is a very important part of people, closely related to their dignity. And we add one further premise, which we might call the vulnerability premise: this faculty can be seriously damaged by bad worldly conditions. It can be stopped from becoming active, and it can even be violated or damaged within. (The first sort of damage, which the 17th-century American philosopher Roger Williams compared to imprisonment, happens when people are prevented from outward observances required by their beliefs. The second sort, which Williams called “soul rape,” occurs when people are forced to affirm convictions that they may not hold, or to give assent to orthodoxies they don’t support.)
The vulnerability premise shows us that giving equal respect to conscience requires tailoring worldly conditions so as to protect both freedom of belief and freedom of expression and practice. Thus the framers of the United States Constitution concluded that protecting equal rights of conscience requires “free exercise” for all on a basis of equality. What does that really mean, and what limits might reasonably be placed upon religious activities in a pluralistic society? The philosophical architects of our legal tradition could easily see that when peace and safety are at stake, or the equal rights of others, some reasonable limits might be imposed on what people do in the name of religion. But they grasped after a deeper and more principled rationale for these limits and protections.