Why Tolerate Religion? By Brian Leiter. Princeton and Oxford: Princeton University Press. 2013. Pp. xv, 133. $24.95.
Brian Leiter (1) is almost exactly half right. There is no convincing secular-liberal argument for religious liberty, in the sense of unique accommodation of religious beliefs and practices specifically because they are religious. Indeed, from a thoroughgoing secularist perspective--from a stance of committed disbelief in the possible reality of God or religious truth, and perhaps also from the perspective of unswerving agnosticism--"toleration" of religion is almost intolerably foolish. Affirmatively protecting the free exercise of religion, in the strong sense of freedom of persons and groups to act on religious convictions in ways opposed to secular legal norms, is even harder to justify. Religious liberty simply does not make much sense on purely secular grounds that start from the premise that sincere religious conviction does not correspond to anything real. That is Leiter's starting point, and it is not surprising that he ends up where he does--concluding that there is no good reason for uniquely protecting religious conscience and conduct.
But there is an altogether straightforward reason for this. The philosophical premises upon which a serious commitment to religious liberty depends are ultimately religious premises. To look for secular justification for religious liberty is to look in the wrong place. And not to find such secular justification is not shocking. Religious freedom (as I have argued at length elsewhere) (2) at bottom only makes full sense on the suppositions that God exists or may well exist; that God's nature and character are such (or may well be) as to give rise to obligations of loyalty and fidelity and thus to obligations with respect to human conduct; that the true commands of God, whenever knowable, are, in principle, prior to and superior in obligation to the commands of men; and that human civil society, acknowledging the priority of God's true commands (yet conceding the inability of human governmental institutions to know them perfectly), rightly must accommodate the broadest possible sphere of religious liberty to plausible claims of religious obligation, even when such a sphere of liberty involves conduct in conflict with society's usual rules. Without such foundationally religious premises, religious liberty does not make great sense as a social and constitutional arrangement.
Why Tolerate Religion? If one is a secularist, there really is no fully acceptable answer. The only convincing reason for protecting religion is the conviction that there is, or may be, such a thing as ultimate religious truth, that such truth is in principle the most important thing there is, and that, consequently, it should prevail over any social rule, law, or custom to the contrary. If religious truth might exist, the freedom to pursue it is worth protecting to the highest degree possible; and the freedom to act in accordance with one's sincere religious convictions similarly merits the greatest possible societal indulgence and legal protection. And one can reach those convictions on rational premises: Religious belief is (in at least some of its forms) an entirely rational, reasonable position. Even if reason might not get one all the way to religious faith (and may better support some religious beliefs than others), it supports the general rationality of religious conviction. Protection of religious freedom is, largely as a result of this fact, an equally sensible policy. Liberty is an imperfect policy, but it is good for promoting rational inquiry and for protecting what may well be rationally justified, true, and (if so) supremely important religious convictions.
Leiter assumes the opposite (quite literally, he assumes it): that religion is intrinsically false and irrational. (3) This is a major philosophical and intellectual weakness in his argument, as I discuss below. But if one starts, as Leiter does, from the premise that there are not and could not possibly be such things as religious truths--that religious belief is, by definition, a set of irrational ultimate commitments (4)--then one is sure to get to the conclusion that serious religious liberty makes no sense.
Well then, how about it: Is religious freedom irrational? Is belief in the possibility of true religious belief silly or confused, so as to make special protection of religion derivatively foolish or insane? Is religious conviction so intrinsically irrational that it is almost literally crazy (or at best craven) for the framers of the First Amendment to have singled out the free exercise of religion for special constitutional indulgence?
In Part I of this Review, I describe Leiter's project, point out areas of agreement and disagreement, and lay bare the underlying (and I think deeply vulnerable) premises of his argument. Nonetheless, in Part II, I briefly conclude--in somewhat ironic agreement with Leiter--that meaningful religious freedom cannot be justified on secularist grounds. A satisfactory justification for religious liberty depends on essentially religious premises.
But do those religious premises make sense? In Part III, I take Leiter to task for the stunning shallowness of his position that religious conviction is defined by its irrationality (in addition to other incidental features), a philosophically unsophisticated proposition unworthy of a mind as subtle as Leiter's. In contradistinction to Leiter, I will define religion in terms of its philosophical attributes and sketch in broad strokes the reasonableness of the serious philosophical arguments for theistic religious conviction. These, in turn, support the rationality of a regime of religious freedom that includes vigorous protection specifically of religious conscience and conduct. One need not subscribe to any particular religious belief or to any religious belief at all to embrace this philosophical and moral justification for religious liberty. One need only accept the philosophical possibility that there may be such things as true religious beliefs, and that this possibility has important consequences that rightly trump the ordinary commands of civil government.
Finally, I conclude the Review by posing the reverse question of Leiter's: From the perspective of a convinced religious belief, why tolerate secularism? If one starts from religious premises (as our society once did, in substantial part, as many in it still do, and as many other societies do), is there any fully convincing reason to tolerate secularism--a philosophy of categorical rejection of religious premises as being valid for constitutional public policy and other social purposes? From the perspective of faith in a real God, does it make sense to tolerate secularism, as an ism, in opposition to what one is convinced are the true moral commands of God? Can religious freedom, in the sense of protection of the free non-exercise of religion, and the preservation of government neutrality with respect to religion in the public square, be justified on religious premises?
Like Leiter's book, my discussion is mostly not about the meaning of the Constitution's religious freedom provisions as legal texts. If original public meaning is the proper approach to reading and applying constitutional texts--and I believe it is (5)--it ultimately does not matter whether religious freedom makes contemporary secular philosophical sense: the task of written constitutionalism is to seek to ascertain, and faithfully apply, the meaning that the words, phrases, and concepts of the document would have had to informed speakers and readers of the language at the time, in the social and political context in which they lived, including the foundational backdrop premises and understandings those societies would have embraced. (6) If that is the case, it is irrelevant for purposes of faithful interpretation of the Constitution whether religious freedom is justifiable in contemporary secularist philosophical terms. The provisions exist; they mean what they mean; and, if we consent to be governed by a written constitution, their original public meaning binds us, whether we think the provisions continue to make sense or not. In a constitutional sense, then, the answer to Leiter's question--Why Tolerate Religion?--is that this is a decision "We the People" made in adopting the First Amendment, and it remains obligatory for so long as we agree to be bound by our present written Constitution. (7)
That does not answer the question of why we as a society should choose to have a constitutional provision protecting the free exercise (and freedom of non-exercise) of religion. That is the philosophical question, almost wholly distinct from the question of constitutional interpretation. And that question--the question of why a liberal political society should protect religious freedom--is the subject of Leiter's provocative book, and of this critical Review.
LEITER'S PROJECT: WHY SPECIALLY PROTECT RELIGION?
Leiter's thesis is summed up in his rhetorical-question title: Why Tolerate Religion? The book is short (133 pages plus endnotes--about 40,000 words). Even at that, the argument is somewhat repetitious, with frequent re-formulations of the question posed: Is there any good, secular philosophical justification--any argument that assumes the invalidity of religious belief--for exempting religious behavior, specifically as such, from society's usual rules and commands? Leiter's answer is an emphatic no.
The first two chapters define Leiter's terms. Chapter One, entitled simply "Toleration," defines and defends toleration as the (usually admirable) principle of putting up with a belief or practice notwithstanding one's view that it is wrong or harmful. Leiter's explication here is straightforward: toleration implies not indifference to right or wrong, but a stance of sometimes putting up...