In Espinoza, the Court elevates a principle that finds no mention in the text of the Constitution.
In Why Tolerate Religion? Brian Leiter, author of the Leiter Reports blog and a law professor at the University of Chicago who has an interest in philosophy, asks why Western democracies have sought to promote and protect religion—and religious liberty—in both law and culture.
He explores this question because he’s puzzled by it. As he sees things, “no one has been able to articulate a credible principled argument for tolerating religion qua religion … why, as a matter of moral principle, we ought to accord special legal and moral treatment to religious practices” (emphases throughout are original). He argues that there is no reason that religion should be protected above and beyond any claim of conscience. Indeed, the book’s dust jacket synopsis perfectly captures his view: “Western democracies are wrong to single out religious liberty for special legal protections.” A bold conclusion. Here’s how he gets there.
Leiter asks “what is distinctive about religion such that religion ought to be tolerated.” He identifies three distinguishing characteristics: Religions “issue in categorical demands on action.” Religions “do not answer ultimately (or at the limit) to evidence and reasons … Religious beliefs, in virtue of being based on ‘faith,’ are insulated from ordinary standards of evidence and rational justification, the ones we employ in both common sense and in science.” And religions “render intelligible and tolerable the basic existential facts about human life, such as suffering and death.” In sum: absolute demands, insulated from reason, to provide existential consolation. Why indeed should religion be tolerated?
To answer that question Leiter asserts that the moral claims for religious liberty fall “into Kantian and utilitarian forms.” Rather than actually examining Kant, he turns straightaway to John Rawls’s argument that respect for persons demands protection of equal liberty. He points out that nothing in the Rawlsian argument is specific to religion; it applies to “liberty of conscience” in general.
The utilitarian arguments face a similar defect: We maximize human well-being, he argues, by protecting liberty of conscience writ large, not solely religious liberty: “being able to choose what to believe and how to live”—not just what (if any) religion to embrace—“makes for a better life.” In fact, Leiter thinks, if we respect liberty of conscience partly to foster conditions in which people can revise mistakes and arrive at the truth, religious liberty may make less sense: “there is no reason to think, after all, that tolerating the expression of beliefs that are insulated from evidence and reasons—that is, insulated from epistemically relevant considerations—will promote knowledge of the truth.” Indeed, since “categorical demands that are insulated from evidence have potential (perhaps even a special potential) for harms to well-being,” there is “reason to doubt whether any utilitarian argument for tolerating religion qua religion will succeed.”
Leiter ultimately concludes that the state should “protect liberty of conscience under the rubric of principled toleration,” but “that there should not be exemptions to general laws with neutral purposes, unless those exemptions do not shift burdens or risks onto others.” A Sikh with a ceremonial dagger “should be out of luck” according to Leiter.
What to make of this? Leiter’s argument suffers from a pair of damning flaws. First, he misconceives religion, the nature of religious beliefs, and the relationship between faith and reason (at least as understood by non-fideistic traditions of faith). Second, he wrongly assumes that Kantian and utilitarian arguments are our only options. These two errors are not unconnected. Had Leiter seriously explored both virtue-ethic and natural-law forms of Aristotelian-Thomistic approaches to morality and politics, he might have achieved a better understanding of what religion is and why it deserves special protection.
The good of religion is not primarily about categorical demands or existential comfort; nor do religious people typically believe that their convictions are insulated from reason. Religion is primarily about the deepest truths: coming to know what, if anything, is the ultimate source of existence, meaning, and value, and then trying to order one’s life in line with one’s best judgments. So even before one reaches theistic, or atheistic, or other conclusions, the good of religion—the rational, philosophically defensible quest for harmony with the ultimate source(s) of meaning and value—is what drives one’s search for answers about the deepest questions of existence.
Yet in its focal case, religion is about God, a word and concept that hardly appears in Leiter’s book. What sets religion apart and makes it particularly worth protecting and promoting, is the special value of getting in a right relationship with God. Political communities in the liberal democratic world have singled out religious liberty for special protection because of the conviction that seeking the truth about God, and then adhering to it by relating to whatever God one might conclude exists, is of supreme importance.
And surely it is no accident that the robust conception of religious liberty and tolerance that is at the foundation of the liberal democratic political ideal emerged in societies shaped by the biblical witness to a personal and just God who fashions human beings as free and rational agents (“made in His image and likeness”) who are, whatever their differences in strength, beauty, and intelligence, equal in fundamental dignity.
With this most basic understanding of what religion is, one can see both that the scientific method is inappropriate for assessing religious claims, and that this is no rational defect of religion. Science has principled limits. It presupposes the existence of a world of contingent things—galaxies and quarks, forces and fields—and explains how that world goes from one state to another. Leiter’s appeals to the “standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment” are simply insufficient when we’re exploring the cause of everything else.
This isn’t to say, though, that the truths of religion somehow contradict or conflict with the standards of evidence and reasoning we use everywhere else—they typically employ them but go beyond them. Religion seeks the transcendent cause of the world; here science necessarily runs out. But—at least on the question of theism—reason does not, as the rich history of natural theology shows.
Indeed, Leiter’s treatment of that history is astonishingly superficial. He spends three paragraphs, for example, dismissing Thomistic thought, betraying a stunningly shallow understanding of it and summarily concluding that there are no “lines of thought that converge on the conclusion that one should affirm a transcendent cause.” Never mind Plato, Aristotle, Augustine, Anselm, Aquinas, Pascal, Descartes, Leibniz, Kant, and Newman, much less leading contemporary heirs to their project.
Leiter similarly dismisses historical inquiries into whether a transcendent cause has revealed itself. It would be reasonable, after all, once one had reached the conclusion that God exists, to seek out whether He has communicated with his free and rational creatures. Yet in a single paragraph on the resurrection Leiter pronounces that “devout Catholics who still persist in believing in the resurrection of Christ hold that belief insulated from reasons and evidence.” They are not “really serious about following the evidence where it leads,” but are simply “manipulating it to fit preordained ends.” All the intellectual converts to Christianity who thought it was precisely the evidence that led them to faith—from St. Paul and St. Augustine to Elizabeth Anscombe, Michael Dummett, Alasdair MacIntyre, and Bastiaan van Fraassen—must have been fooling themselves. Yet Leiter provides no refutation of the evidence of Christ’s resurrection—beginning with the unanimous testimony of his disciples and their willingness to accept martyrdom for that testimony—which these converts found persuasive.
What does this mean for religious liberty? Contrary to many popular conceptions today, religious liberty isn’t founded on indifferentism, or relativism, or subjectivism, or skepticism: That there’s no meaningful truth at stake in religion, or that if there is we simply can’t know it. Nor should religious liberty be understood as a right to self-authenticity, where the right of religious liberty is conflated with the right of conscience understood as being true to one’s self (especially where one’s “self” is equated with one’s desires).
No, with Newman we should see conscience as a “stern monitor.” It is the faculty of rational moral judgment by which we are capable of distinguishing right and wrong and conforming our conduct to truths about what must and must not be done. This makes sense of Newman’s claim that “conscience has rights because it has duties,” for it has duties to pursue and to adhere to truth. Indeed, conscience has particular duties with respect to the most important truths in life, truths about God. Thus a sound understanding of religious liberty is that religious truth exists, and that we have a moral duty to seek it out and to live our lives accordingly.
Politically, this pursuit and adherence best takes place if it is in no way coerced; indeed religious acts have actual moral merit, actual moral worth, only if freely chosen. God, as understood in the traditions of ethical monotheism, does not desire forced worship; in fact, an act simply could not qualify as an act of worship if it were coerced. Likewise, when conflicting with religious pursuits, even generally applicable laws should take religious goods into account. This helps explain why we have our First Amendment, and why Congress passed the Religious Freedom Restoration Act to ensure that any law impinging negatively on religious freedom do so only for compelling reasons and in the least restrictive way possible.
Both liberty of conscience and religious liberty ought to be protected. But conflating the right to religious liberty with a more general right of conscience fails to take into account the distinctive good involved with religion, and the ways it can be violated even when conscience is not. Many Catholics do not feel bound by conscience to attend Mass on weekdays. But a law that prevented them from attending, while not violating their rights of conscience, would violate their religious liberty rights. So, too, with the inner workings of religious organizations, their hiring decisions, their determinations of ministers and doctrine, and so on.
So what can one say by way of conclusion? There is an interesting book to be written on the relation of conscience rights and religious liberty, but unfortunately this isn’t it. That book would need to get clear on the real nature of religion and thus the foundations of religious liberty. Academic philosophers—especially philosophers of religion—will likely ignore this book. The rest of us can safely do likewise.
Ryan T. Anderson is the William E. Simon Fellow at the Heritage Foundation and the Editor of Public Discourse. With Sherif Girgis and Robert P. George he is author of What is Marriage?: Man and Woman: A Defenseto be released by Encounter Books later this month.