Leiter's Objection to Religion as a Special Category for Toleration
“Your claim of conscience counts if it is based in religion; my claim of conscience doesn’t count if it is not based in religion. That, it seems to me, is a pernicious and indefensible inequality in the existing legal regime.” ˗˗Brian Leiter
Debates over religious toleration is not a contemporary concern. Disputes can be traced back hundreds of years to “the European wars of religion, a time when people were killed over religious differences,”[1] says Brian Leiter. However, and without foreseeing the potential outcomes of the battles, those turbulent times set the foundation for new ways of viewing the religion paradigm and acceptance of diverse religions within Western societies; this was an important achievement of Western democracies. Leiter’s interest in the preferential treatment religion receives under the law seems controversial, not only because the subject of religion is ‘touchy’ per se, but also because of his position as a professor at the University of Texas-Austin. His findings highlighted in his book “Why tolerate religion?” regarding the place of religion and tolerance in society come as a result of observing how conservative Christians in Texas sought to influence politics and public education. Yet, his conclusions can be extrapolated to other states within the Western democracies. Leiter argues that “the West’s preferential treatment for religious toleration is not in step with changing times.”[2] Along with this argument, he ponders the implications of his position and if it is viable, especially in matters of personal conscientious objectors; and additionally, when distinctive religious beliefs are framed by “the categoricity of demands conjoined with its insulation from evidence”[3] that remain fixed within our ever-changing times.
Concerning religion, Leiter stresses throughout his book that “if there’s a special reason to tolerate religion it has to be because there are features of religion that warrant toleration,”[4] either as attributes of necessity or aspects that other circles of faith have (or might have). He leans toward the latter features that include necessary contingent beliefs, and because of their necessity, they make a distinction from other kinds of toleration. As most humans can distinguish between what is religious or not, the way we define religion will always be biased due to pre-theoretical intentions (the judgement that appears when one sees it). Within the democratic frame, problems emerge when toleration is demanded from a minority group and the majority group restrains itself; this seems to entail that the majority must remain neutral while it presents itself as tolerant of or judgemental of the minority. Leiter stresses that there are no arguments (legal or constitutional) to defend this status quo because “there is no moral or epistemic consideration that favours special legal solicitude toward beliefs.”[5] Furthermore, general reasons for “being skeptical that there are special reasons to tolerate religion qua religion”[6] implies that there are limits of religious toleration imposed by side-constraints which can create potential harm. This is more unclear when the categorical demands are based on beliefs insulated from evidence (certain beliefs in every religion are not evidence-based), and some beliefs provide followers with existential consolation to help them cope with suffering and death. In other words, Leiter’s position is built, though from a minority position, on the idea that religion should not be treated as special. But why does he think so? How does he conceive toleration in the light of religion as a non-special category?
Leiter simply cannot find an equally strong argument as to why religious conscience has been treated as more deserving of protection. However, it is worth noting that he does not centre his argument on the falsity of beliefs and/or their lack of epistemic warrant as objections. Rather, Leiter offers persuasive arguments regarding the important role toleration plays in general in Western society. He supports his arguments by bringing up John Rawls, who defends liberty of conscience as a basic right, and the utilitarian arguments of John Stuart Mills, who sees the toleration of conflicting views as crucial in society’s search for truth and knowledge (disagreements are part of the democratic sphere, just as Christiano emphasized). In other words, for Rawls, “liberty of conscience is to be limited only when there is a reasonable expectation that not doing so will damage the public order,”[7] which is the state’s duty; for Mills, “the only purpose for which power can be rightfully exercised over any member of a community is to prevent harm to others.”[8] However, neither the Rawlsian nor the Millsian arguments would guarantee a special legal status for beliefs over other conscientious beliefs as both schools of thought conclude that “liberty of conscience is sufficiently important to individuals that a just and decent society is going to protect a sphere for the liberty of conscience.”[9] The author underlines that religious toleration is not synonymous with religious freedom from state jurisprudence, and the state, who holds the monopoly of security, must remain neutral while maintaining its aim to “burden particular religious claims of conscience, but this seems inconsistent with the moral requirement of toleration.”[10] In other words, a state can be as intolerant toward certain minority groups as the citizens. Leiter provides strong examples where a state can show obvious ideological bias hidden behind laws and/or regulatory systems, i.e. the “tax exemptions for religious organizations in the US”[11] that benefit mostly Christian groups, or “the real challenge posed by French laïcité and its law banning headscarves”[12] that is clearly filled with intolerance toward Islam. Leiter claims that a state endorsement of some particular “vision of the good”[13] is compatible with principled toleration of citizens' personal conceptions of the good life. The state may tolerate divergent views of a good life, and won't suppress a citizen's divergent views by endorsing a different conception of the good life. However, he acknowledges that “state endorsement of a particular vision may crowd out a citizen's personal conception,”[14] but this does not indicate that state endorsement is incompatible with principled toleration.
Leiter's main conclusion seems to be that an approach to law that grants ‘No Exceptions’ to generally applicable laws with neutral purposes for claims of religious and non-religious burden-shifting conscience is the most consistent approach to law. It is compatible with both principles of fairness (given practical features of enforcement), and “the necessity of a state to endorse some Vision of the Good.”[15] In short, as long as a state does not target divergent conceptions of a good life, then no problem arises with principled toleration.
While we might wish there was a way to grant exemptions to all claims of conscience, this would lead to almost overwhelming practical problems; “it would be tantamount to legalizing civil disobedience,”[16] and while courts can verify a person’s involvement in a religion and that religion’s particular beliefs, non-religious claims would be much more difficult to verify. Let us agree that we do not have a way to peer into a person’s soul to see if their claim of conscience is really a legitimate claim of conscience. However, avoiding laws motivated by intolerance is different from granting special religious exemptions from neutral laws, and such “special treatment for religion often defeats society’s promotion of the general welfare.”[17] As Leiter succinctly underlines that toleration may be a virtue, both in individuals and in states, “its selective application to the conscience of only religious believers is not morally defensible.”[18]
[1] Sarah Galer, “Brian Leiter Discusses “Why Tolerate Religion?,” UChicago, last modified March 27, 2013, https://www.law.uchicago.edu/news/brian-leiter-discusses-why-tolerate-religion
[2] Galer, “Brian Leiter Discusses “Why Tolerate Religion?” [3] Brian Leiter, Why Tolerate Religion? (Princeton: Princeton University Press, 2014), 61. [4] Leiter, Why Tolerate Religion?, 26. [5] Ibid., 67. [6] Ibid. [7] Ibid., 22. [8] Ibid. [9] Galer. [10] Leiter, 106. [11] Ibid., 103 [12] Ibid., 109. [13] Ibid., 118-122. [14] Ibid., 121. [15] Ibid., 130. [16] Galer. [17] Ibid. [18] Ibid., 133.
Bibliography
Galer, Sarah. “Brian Leiter Discusses “Why Tolerate Religion?” UChicago. Last modified March 27, 2013. https://www.law.uchicago.edu/news/brian-leiter-discusses-why-tolerate-religion.
Leiter, Brian. Why Tolerate Religion? Updated edition with a New Preface ed., Princeton: Princeton University Press, 2014.