Why Tolerate Religion?

• Author: McConnell, Michael W.
• Position: Book review

Why Tolerate Religion?

BY BRIAN LEITER

PRINCETON, NJ: PRINCETON UNIVERSITY PRESS, 2012, PP. 208. $24.95.

REVIEW CONTENTS INTRODUCTION I. "TOLERATION" II. THE PHILOSOPHICAL ARGUMENT A. Religion as a Subset of Conscience B. "Insulation from Evidence" C. Rawls D. Mill E. Schauer and "Governmental Incompetence" III. THE LEGAL ARGUMENTS A. Free Exercise Exemptions B. Harm C. Establishment of a "Vision of the Good" INTRODUCTION

Religious beliefs have always generated controversy. But religious freedom--the right of individuals and groups to form their own religious beliefs and to practice them to the extent consistent with the rights of others and with fundamental requirements of public order and the common good--has long been a bedrock value in the United States and other liberal nations. Religious freedom is one thing nearly all Americans, left and right, religious and secular, have been able to agree upon, perhaps because it protects all of us. (1) Atheists are protected from imposition of prayer and Bible reading in state schools; (2) churches are protected from interference with the hiring of ministers; (3) religious minorities are protected from majoritarian legislation indifferent or hostile to their concerns. (4) Progressive churches are protected when they oppose segregation or counsel draft resisters; (5) traditionalist churches are protected when they oppose abortion or operate faith-based schools; (6) nontraditional faith groups with unfamiliar worship practices are allowed to carry them out in peace (7) Because none of us can predict who will hold political power, all of us can sleep more soundly if we know that our religious freedom does not depend on election returns.

When the Supreme Court narrowed its interpretation of the Free Exercise Clause in 1990, in the so-called "Peyote Case," Employment Division v. Smith, (8) Congress passed the corrective Religious Freedom Restoration Act (RFRA) (9) by unanimous vote in the House and a margin of 97-3 in the Senate. (10) Supporters included the ACLU, the National Association of Evangelicals, People for the American Way, the American Jewish Congress, the Christian Legal Society, and virtually every other religious and civil liberties group. (11) Recently, however, this consensus seems to be weakening--largely from fallout over culture-war issues such as abortion and the legal recognition of same-sex relationships. Many activists on these issues see religion as antagonistic to their interests, and are responding in kind. A new whiff of intolerance is in the air. (12)

University of Chicago law professor and legal philosopher Brian Leiter has entered the debate with his new book Why Tolerate Religion? (13) His answer? Although we should not persecute religious believers, religion as such does not warrant any "special" legal solicitude such as that provided by the Religion Clauses of the First Amendment. (14) "[T]here is no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action." (15) Leiter argues, moreover, that it would be consistent with "principled toleration" for the secular state to affirmatively discriminate against religious believers in access to public spaces, such as by barring student Bible clubs from meeting on public school property, even when every other form of student organization is free to meet. (16) So long as religious believers retain the right to express their own beliefs (including wearing religious symbols and clothing), the regime may advocate a "Vision of the Good" that is "irreligious" (17) and may selectively deny religious believers and religious speakers equal access to public resources and opportunities.

When it comes to accommodation of practices, and not just beliefs, Leiter argues that it would be impractical to accommodate all claims of conscience and "unfair" and "arbitrar[y]" to single out claims that are grounded in religious belief. (18) So his answer: accommodate none of them, at least if the accommodation would inflict harm or shift burdens onto third parties. Exactly what is meant by these assertions, as we shall see, is less than clear. The argument depends on terms like "conscience," "special," and "harm," but the book provides no precise definition of their meanings. The author is vague about what to do when accommodations do not cause harm and when religious practices have no secular analogue.

Organizationally, the book weds four chapters of ambitious and wide-ranging philosophical arguments to a fifth and final chapter primarily addressing two controversial issues of First Amendment law: whether religious practices are entitled to exemptions from formally neutral laws (to which Leiter answers "no"), and whether groups may be excluded from otherwise open public school speech forums because they espouse a religious point of view (to which he answers "yes").

The first major argument of the book--spread between Chapters One and Four--is that discussions of religious freedom ought to be framed around the concept of "toleration." By "toleration," Leiter means protection from coercion (or "eradication") but something less than neutrality. To be specific, the state may not "jail or annihilate the adherents of the disfavored claims of conscience," nor may it "directly target or coercively burden their claims of conscience" (absent real harm), (19) but it may use public resources and publicly controlled institutions to espouse the state's own contrary "religions or irreligious" Vision of the Good (20) and may exclude dissenters from equal access to public facilities. (21) The second philosophical argument--Chapters Two and Three of the book--presents a definition of religion and discusses several prominent justifications for toleration, concluding that none of these theories can justify a special protection for the free exercise of religion, beyond that accorded conduct based on nonreligious beliefs. (22) In these chapters, Leiter's argument consists of two steps. First, he offers a definition of religion as "categorical demands that are insulated from evidence" (23)--meaning that religion is a phenomenon characterized by insulation from "common sense and the sciences." (24) Second, he examines several prominent justifications for toleration offered by John Rawls, John Stuart Mill, and Frederick Schauer, and in each case concludes that nothing in these justifications warrants tolerating religion specifically.

More surprisingly, in Chapter Five Leiter concludes that this spare doctrine of "principled toleration" also does not justify any special protection against the establishment of religion. As far as "principled toleration" goes, it would be unobjectionable to declare the Roman Catholic Church the established church of the nation, and favor it over all other ideological competitors--so long as dissenting voices are not coercively burdened or silenced. It becomes clear that Leiter's objection is not to one particular theory of free exercise protections (free exercise exemptions), but to the entire idea of special protection for religious freedom.

At a few extraordinary moments in the book, it appears that the author might even opt for intolerance toward religion--use of the coercive power of the state to discourage or even "eradicate" religious belief, (25) on the ground that religious beliefs do real harm to the body politic. Each time, after floating the argument for intolerance, usually in the form of rhetorical questions rather than straightforward claims, he retreats. But each time the retreat is based on the lack of sufficient empirical support for the net harmfulness of religion--not because of the importance of religious freedom to the individual or to liberal democracy. At page 59, for example, he poses the question: "isn't there reason to worry that religious beliefs, as against other matters of conscience, are far more likely to cause harms and infringe on liberty?," (26) observing that this might "form the basis of an argument for why there are special reasons not to tolerate religion." (27) He follows this suggestion with the tentative disavowal that "I wonder" whether "such a demeaning conclusion about religious belief ... is warranted," (28) leaving the reader to suspect that his support for toleration hangs on the thread of empirical uncertainty.

And consider this paragraph:

[R]eligious believers overwhelmingly supported George W. Bush, widely considered one of the worst presidents in the history of the United States, whom many think ought to be held morally culpable both for the illegal war of aggression against Iraq as well as the casualties resulting from domestic mismanagement. Of course, if we really thought there were some connection between religious belief and support for the likes of Bush, then even toleration would not be a reasonable moral attitude to adopt toward religion: after all, practices of toleration are, themselves, answerable to the Millian Harm Principle, and there would be no reason ex ante to think that Bush's human carnage is something one should tolerate? (29) If I understand this passage correctly, Leiter is flirting with the idea that it would be justifiable to withhold toleration from religious believers because they have a propensity to support political candidates of whom he disapproves. If that is his notion of "Millian Harm," sufficient to justify official intolerance toward American religious believers, we are very far from anything recognizable as liberalism or democracy.

Ultimately, Leiter concludes that this "Bush carnage" argument for intolerance is "not warranted," but not because of any principled commitment to democracy or respect for differing opinion. It is unwarranted because "there is no reason to think" that...