Review of Brian Leiter, Why Tolerate Religion?

Princeton: Princeton University Press, 2013. 192 pp.  $24.95.

By Alexander Kaye

alk2123@gmail.com

The US Constitution protects the free exercise of religion. Brian Leiter wants to know why. More precisely, although Leiter acknowledges that a history of religious conflict was the reason the framers wanted to protect religion in the eighteenth century, he wants to know why the constitution should continue to single out religion for protection even today. In this short book, Leiter examines the arguments for what he calls “principled toleration” to assess whether any of them pertain specifically to religion. He ultimately concludes that they do not.

Leiter considers three kinds of arguments for principled toleration of a group or practice. The first is the moral argument which claims, in Rawls’ formulation, that toleration of conscience follows from the “principle of equal liberty.” (For Rawls everyone in the “original position” would acknowledge the principle of freedom of conscience for fear that they would end up in a persecuted minority.) The second kind of argument is utilitarian. It maintains that human good is maximized if all people, within appropriate limits, are free to believe what they like and to act how they want. On these grounds, religion should be protected for the sake of the greater collective good. Finally, Leiter considers an epistemic argument. His model for this argument is John Stuart Mill, who advocated toleration because it helps us to discover the truth. The best way to find the right way to live, Mill maintained, is to allow as many possible ways of life to flourish so that the best one can be identified.

These arguments all have their strengths and weaknesses but, Leiter claims, none of them justify the protection of religion per se. To the extent that any of these arguments hold water, they should advocate for the protection of all matters of conscience, not religion alone. Yet the First Amendment protects Catholics and Muslims but not Marxists or committed vegans. Is there any philosophical justification, then, for the constitution to single out religion for special protection? To address this question, Leiter embarks upon an attempt to define the features of religion, concluding that nothing about religions – not their claim to issue categorical demands independent of reason, nor their metaphysical speculations, nor their offers of existential consolation – should single them out for special constitutional protection. If anything, he insists, the features of religion, particularly their self-insulation from reasons and evidence, should make them less deserving of legal exemptions, not more. He is particularly unimpressed with assertions by people like Martha Nussbaum’s that religion particularly merits “respect.”

Furthermore, Leiter points out, religious exemptions from the law have a cost. People who are exempt from paying taxes on religious grounds, for example, shift their burden for taxation onto others who have no religious objection to taxes (even if they may object on other grounds).  As a result, Leiter advocates the end to religious exemptions. “Toleration may be a virtue, in individuals and in states, but its selective application to the conscience of only religious believers is not morally defensible.” (133)

Leiter has a discursive style that is accessible but nonetheless rigorous. The book is a worthwhile introduction to some important currents in First Amendment scholarship, especially if the reader makes use of the endnotes. From an analytical perspective, his arguments seem to be sound, though I will leave an assessment of them to trained philosophers. The book is also refreshing in that it is an undisguised, though reasoned, polemic. Leiter is open about his positions and does his best to convince the reader to agree with him.

Certain aspects of the book weaken its impact. Leiter’s prose occasionally veers from the assertive to the pugnacious. It is difficult to imagine that Leiter’s conservative detractors would be swayed by a passage like this one: “…If we really thought there were some connection between religious belief and support for the likes of [President G. W.] Bush, then even toleration would not be a reasonable moral attitude to adopt toward religion… there would be no reason ex ante to think that Bush’s human carnage is something one should tolerate.” (83)

Furthermore, Leiter’s representation of religion leaves a little to be desired. He assumes throughout the book that religion is primarily, or even exclusively about belief. (Is “a Jewish prayer before Friday evening dinner” only “a case of … belief”? (77)) This leaves little  room for an appreciation of the role of ritual and community-based meaning-making activities which  are often more characteristic of religious activity than creed. Even where Leiter might have good substantive claims, this approach to religion weakens his ability to assess (and to reject) the claim of another constitutional expert, (John Witte Jr.,) that “religion is a unique source of individual and personal identity.” (32) This concern is magnified when Leiter indicates his feelings about the effect of religious-inflected practice, calling in-school readings from the King James Bible “ludicrous Bible-reading rituals.” (127)

Leiter’s preference for philosophical speculation over a historical documentation of legal change in practice (a legitimate preference, to be sure) means that cursory readers of the book might not come to appreciate that its central question – whether religion should be granted more protection than other matters of conscience – has for a long time been a matter of intense discussion in the American judiciary and legislature. Indeed, a number of Supreme Court cases have broadened the boundaries of what counts as “religion” in ways that Leiter would presumably favor. In United States v. Seeger (1965), for example, the defendant refused to serve in the armed forces because of his convictions that were not explicitly religious. The court ruled, however, that he was exempt from conscription because “the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers.” The decision went on to quote the theologian Paul Tillich, whose definition of religious belief is quite different from that of Leiter: “And if that word [God] has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, or your ultimate concern, of what you take seriously without any reservation. Perhaps, in order to do so, you must forget everything traditional that you have learned about God.”

Despite this trend in the judiciary, Leiter may have been motivated to write this book now in view of more recent events. Perhaps the book is an implicit response to Congressional resistance to the Supreme Court’s movement away from the “strict scrutiny” test for determining violations of the free exercise clause. (Against earlier precedent, and, again, presumably in line with what Leiter would approve of, Employment Division v. Smith (1990) ruled that “neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment.” Congress pushed back with Religious Freedom Restoration Act (1993) and the battle between the legislature and the judiciary over this issue continued for years.) Or perhaps Leiter understood his book as an intervention in the contemporary multifaceted debates over “religion” and “secularism” in American discourse. Whatever the motivation for the book, it remains, for all its shortcomings, a lucid, cogent argument and is worthy of engagement by those interested in its topic.

 

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