Why Tolerate Religion?

Updated Edition

Brian Leiter

• Publisher: Princeton University Press
• Year: 2014
• ISBN:
  9781400852345
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Why it's wrong to single out religious liberty for special legal protections This provocative book addresses one of the most enduring puzzles in political philosophy and constitutional theory—why is religion singled out for preferential treatment in both law and public discourse? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not? In Why Tolerate Religion?, Brian Leiter shows why our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and why a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.

CHAPTER I

Toleration

Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. The American Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”¹ As the German Constitution (or “Basic Law”) provides in Article 4, “Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable,” adding, in a separate clause, “The undisturbed practice of religion shall be guaranteed.”² The first of the four “Fundamental Freedoms” in the Canadian Charter of Rights and Freedoms is held to be “freedom of conscience and religion.”³ And Article 18 of the Universal Declaration of Human Rights declares,

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.⁴

While the American Constitution only mentions religion,⁵ the recognition for claims of “conscience” in the other documents is more perfunctory than substantive: litigated cases overwhelmingly involve claims of religious conscience.⁶ Indeed, if claims of religious conscience were not really the primary concern in each case, then surely the explicit mention of religion (or the mention of special protections for religion) would appear redundant on the protection purportedly afforded claims of conscience more generally.

While the historical reasons for the special “pride of place” accorded religious toleration are familiar,⁷ what may be more surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion—that is, an argument that would explain why, as a matter of moral principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices and conscientious commitments, as well as related practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in existing Western legal systems. So why tolerate religion? The answer in this book is: not because of anything that has to do with it being religion as such—or so I shall argue.

Principled Toleration

To see why this is so we will need to start, though, with some distinctions that make possible a more perspicuous formulation of the question. In particular, we need to state clearly what is at stake in something called a principle of toleration. I shall take as a point of departure a useful formulation of the issues by the late English philosopher Bernard Williams:

A practice of toleration means only that one group as a matter of fact puts up with the existence of the other, differing, group…. One possible basis of such an attitude … is a virtue of toleration, which emphasizes the moral good involved in putting up with beliefs one finds offensive…. If there is to be a question of toleration, it is necessary that there should be some belief or practice or way of life that one group thinks (however fanatically or unreasonably) wrong, mistaken, or undesirable.⁸

For there to be a practice of toleration, one group must deem another differing group’s beliefs or practices “wrong, mistaken, or undesirable” and yet “put up” with them nonetheless. That means that toleration is not at issue in cases where one group is simply indifferent to another. I do not “tolerate” my neighbors who are nonwhite or gay because I am indifferent as to the race or sexual orientation of those in my community. Toleration, as an ideal, can only matter when one group actively concerns itself with what the other is doing, believing, or “being.” Obviously, in many cases, the attitude of indifference is actually morally preferable to that of toleration: better that people should be indifferent as to their neighbors’ sexual orientation than that they should disapprove of it but tolerate it nonetheless.

But a practice of toleration is one thing, a principled reason for toleration another. Many practices of toleration are not grounded in the view that there are moral reasons to tolerate differing points of view and practices, that permitting such views and practices to flourish is itself a kind of good or moral right, notwithstanding our disapproval. Much that has the appearance of principled toleration is nothing more than pragmatic or, we might say, “Hobbesian” compromise: one group would gladly stamp out the others’ beliefs and practices, but has reconciled itself to the practical reality that it can’t get away with it—at least not without the intolerable cost of the proverbial “war of all against all.” To an outsider, this may look like toleration—one group seems to put up with the other—but it does not embody what Williams called a “virtue” of tolerance (or what I will call “principled tolerance”), since the reasons for putting up are purely instrumental and egoistic, according no weight to moral considerations. One group puts up with the other only because it would not be in that group’s interest to incur the costs required to eradicate the other group’s beliefs and practices.

Yet it is not only Hobbesians who mimic commitment to a principle of toleration. On one reading of John Locke,⁹ his central nonsectarian argument for religious toleration is that the coercive mechanisms of the state are ill-suited to effect a real change in belief about religious or other matters. Genuine beliefs, sincerely held, can’t be inculcated at gunpoint, as it were, since they respond to evidence and norms of rational justification, not threats.¹⁰ In consequence, says the Lockean, we had better get used to toleration in practice—not because there is some principled or moral reason to permit the heretics to flourish but because the state lacks the right tools to cure them of their heresy, to inculcate in them the so-called correct beliefs.

Locke, it is fair to say, did not fully appreciate the extent to which states and—in capitalist societies—private entities can employ sophisticated means to effectively coerce belief, means that are both more subtle and more effective than he imagined. That history offers up so many examples of societies in which the tyranny of the few over the many is accepted by the many as a quite desirable state of affairs is compelling evidence that states can successfully inculcate beliefs, even dangerously false beliefs. Locke’s “instrumental” argument for a practice of toleration should provide little comfort to the defender of toleration given his (understandable) failure to appreciate the full complexity of the psychology and sociology of belief inculcation.

Not only Hobbesians and Lockeans, however, mimic principled toleration. A variation on the Lockean instrumental argument for toleration is apparent in a popular theme in American political thinking—one that receives a well-known articulation in Frederick Schauer’s defense of free speech¹¹—according to which government cannot be trusted to discharge the task of intolerance “correctly”—that is, in the right instances. Speech can harm, in all kinds of ways, notes Schauer, and the various rationales for putting up with these harms—from John Stuart Mill’s “marketplace of ideas” to Alexander Meiklejohn’s conception of free speech as essential to democratic self-government—almost all fall prey to objections of one kind or another. But, says Schauer, there is still a reason to demand that the state tolerate many different kinds of speech (even harmful speech), and that is because there is no reason to think the state will make the right choices about which speech ought to be regulated. Schauer calls this “the argument from governmental incompetence” and writes,

Freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense.¹²

It is not, then, as in the Lockean argument, that government lacks the right means for bringing about intolerant ends; it is rather that government is not competent—that is, cannot be relied upon—to deploy its means in the right cases. Perhaps this kind of instrumental argument for state toleration is more plausible, but its justificatory structure makes it no different from that of the Lockean’s: it does not tell us why we, morally, ought not to eradicate differing beliefs or practices, it tells us only that we (through the instrumentality of the state) are unlikely to do it right.

Where a genuine “principle of toleration” gets its purchase is in the cases where one group (call it the “dominant” group) actively disapproves of what another group (call it the “disfavored” group) believes or does; where that dominant group has the means at its disposal to effectively and reliably change or end the disfavored group’s beliefs or practices; and yet still the dominant group acknowledges that there are moral or epistemic reasons (that is, reasons pertaining to knowledge or truth) to permit the disfavored group to keep on believing and doing what it does. That is “pure” or “principled” toleration,¹³ and the question, then, is whether there is such a reason to tolerate religion.

My concern here shall mainly be with the principled grounds of state toleration, as opposed to toleration in interpersonal relations, though the issues are often similar. Some contemporary “liberal” philosophers think the right posture for the modern state is one of neutrality, not toleration, with the disapproval the latter implies. But I reject the view that any state can really be neutral in this way; as I will argue in chapter 5, every state stands for and enacts what I call a “Vision of the Good”—even if most Western democratic states no longer endorse such a distinctively religious vision. The American state has decided not only that “liberty and equality for all” are fundamental values but that all children must learn Charles Darwin’s theory of evolution by natural selection, yet they do not need to “know” anything about the biblical view of creation. The American state is not at all neutral with respect to those sects that reject “liberty and equality for all,” let alone those that think creation myths are on a par with biology and deserve equal time in the public schools. Toleration thus remains a virtue for the liberal state, as it does for the individual. Even if one thinks states can aspire to more neutrality than I suppose, it is still the case that when particular minority claims of conscience, religious or otherwise, assert the need to be exempted from neutral laws of general applicability, what they are demanding is not neutrality but something like the virtue of toleration—that is, they are demanding that the state suspend its pursuit of the general welfare in order to tolerate (i.e., “put up with”) a conscientious practice of a minority of its citizens that is incompatible with it. That is why the central question in this book is: what are the principled reasons why the state should exempt religious claims of conscience from the burden of its laws? I frame the problem in these terms because, even though the historical problem about religious toleration was generated by conflict among religious groups, the contemporary problem, at least in the post-Enlightenment, secular nations (of which the United States may still be one) is different: it is why the state should tolerate religion as such at all.

Arguments for Principled Toleration

Before we consider religious tolerance in particular, it will be useful to consider the general structure of principled arguments for state toleration of group differences. The literature on the subject is voluminous, so necessarily I will be able to consider only a few themes here. Yet the themes I emphasize will, I believe, capture the main principled positions in the debates.

We can distinguish between two broad classes of principled arguments for toleration, which I will call moral and epistemic (though the latter ultimately rests on moral considerations as well). The strictly moral arguments for toleration claim either that there is a right to the liberty to hold the beliefs and engage in the practices of which toleration is required; or that toleration of those beliefs and practices is essential to the realization of morally important goods. The moral arguments divide, predictably enough, into Kantian and utilitarian forms.¹⁴

As paradigmatic of the broadly Kantian arguments, consider the Rawlsian theory of justice according to which “toleration … follows from the principle of equal liberty,”¹⁵ one of the two fundamental principles of justice that, Rawls argues, rational persons would choose in what he calls the “original position”—that is, a situation in which people choose the basic principles of justice to govern their societies, and in which they do so deprived of the kind of information about their place in society that would render their judgments partial and self-serving. As Rawls puts it,

[T]he parties must choose principles that secure the integrity of their religious and moral freedom. They do not know, of course, what their religious or moral convictions are, or what is the particular content of their moral or religious obligations as they interpret them…. Further, the parties do not ...