Why tolerate religion?

The book Why Tolerate Religion? does not invite the answer: no, let’s ban it. The meaning of the title is: given the universal human rights of freedom of speech, freedom of assembly etc etc, should there be a separate and additional category of religious rights? To put it another way: should religious people have rights in addition to those of non-religious?

The author, Brian Leiter, is Professor of Jurisprudence and Director of the Center for Law, Philosophy, and Human Values at the University of Chicago. Dauntingly, Leiter says that the book aims ‘to make the text readable by scholars in other disciplines interested in these issues, and perhaps also by educated laypeople.’ Trained in neither law nor philosophy, your reviewer is haunted by the ‘perhaps’ but did enjoy the book and found it very helpful in clarifying the issues. At least it is clear that this scholarly book is far from polemics like God is Not Great by Christopher Hitchens.

I came across Leiter through an Aljazeera article of his arguing that “The rule of law applies to all, even religious believers”. It inspired me to buy the book.

The book opens with a scenario about two school students. In the one case, the youth’s family tradition demands that he wear a knife: as with his father and grandfather before him, it is essential to him as a person; to deprive him of it is to demean him, his family and his manhood. The other student is a Sikh, whose religion demands that he wear a knife. Should the state privilege one worldview over the other? As Leiter puts it, ‘The central puzzle in this book is why the state should have to tolerate exemptions from generally applicable laws when they conflict with religious obligations but not with any other equally serious obligations of conscience.’ It asks whether there is ‘any reason to think that moral ideal would only single out religious claims of conscience, protecting our Sikh boy but leaving our rural boy with no legal remedy.’

Leiter finds as a matter of record 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.’

Leiter explores the concept of toleration. This is something you do in the case of something you don’t like. I don’t tolerate coffee. As Leiter says, ‘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.’ Why tolerate? Leiter notes an argument for freedom of speech: ‘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.’ Delightfully, this has been called ‘the argument from governmental incompetence.’

As for toleration of religion, in the past a state was expected to favour a particular religion or sect but might choose to tolerate non-conformists: ‘the historical problem about religious toleration was generated by conflict among religious groups’. However, ‘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.’

Utilitarian arguments make a contribution here: these ‘have a similar feature—namely, that they do not obviously single out religion for special consideration as opposed to other important matters of conscience. These arguments come in many different varieties, but all share, in one form or the other, the core idea that it maximizes human well-being—however exactly that is to be understood—to protect liberty of conscience against infringement by the state.’ Epistemic arguments for toleration are also important: these ‘emphasize the contribution that tolerance makes to knowledge. Such arguments find their most systematic articulation in the work of John Stuart Mill. According to Mill, toleration is necessary because (1) discovering the truth (or believing what is true in the right kind of way) contributes to overall utility; and (2) we can only discover the truth (or believe what is true in the right way) in circumstances in which different beliefs and practices are permitted.’

Leiter continues his treatment of the core question of the book by examining the nature of religion, proposing a definition: for all religions, there are at least some central beliefs that:

1. issue in categorical demands on action—that is, demands that must be satisfied no matter what an individual’s antecedent desires and no matter what incentives or disincentives the world serves up; and

2. do not answer ultimately (or at the limit) to evidence and reasons, as these are understood in other domains concerned with knowledge of the world. 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.

A discussion of other worldviews which may be religions or described as such or denied the status, including Marxism and Buddhism, leads to an additional proposed quality of religions:

3. religious beliefs involve, explicitly or implicitly, a metaphysics of ultimate reality.

According to Leiter, the categoricity of commands distinctive of religious beliefs is, in turn, related to this metaphysics of ultimate reality in the sense that they specify what must be done in order for believers to stand in the right kinds of relations to “ultimate reality” - that is, to the reality that makes their lives worthwhile and meaningful. Finally, there are some beliefs in religion that:

4. render intelligible and tolerable the basic existential facts about human life, such as suffering and death.

If, then, the categoricity of its commands, insulation from evidence and existential consolation are the distinctive features of religious belief, do the reasons for tolerance warrant singling religion out for protection? In other words, are the characteristics of religion as set out above such as to justify special treatment? Does the existential consolation function of religion constitute an overwhelming utilitarian rationale for tolerating religion qua religion? Leiter concludes that this would be so ‘only if we were willing to speculate that the existential consolation functions of religion produce more utility than the harm produced by the conjunction of categoricity and insulation from evidence; and only if we are willing to speculate that the preceding net gain in utility would be greater than the alternative ways of producing existential consolation without the conjunction of categoricity and insulation from evidence.’ (Many of Leiter’s sentences are like that.)

Leiter thus finds that, while there may be compelling principled reasons for the state to respect liberty of conscience, there is no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action, even allowing that those demands may figure in systems of belief that have some utility-maximizing effects (e.g., existential consolation). If matters of religious conscience deserves toleration, then they do so because they involve matters of conscience, not matters of religion.

Leiter turns to a further question: whether the law of religious liberty should embody mere toleration or a more affirmative kind of appraisal respect. In particular, should the state grant exemptions to laws on grounds of religion? The author reminds the reader that the (United States) constitutional and statutory provisions that encode religious toleration provide that individuals with claims of religious conscience can request, and sometimes secure, exemptions from generally applicable laws, an opportunity unavailable to the individual with a “merely” secular claim of conscience. Leiter logically points out the consequence of such measures. ‘If general compliance with laws is necessary to promote the “general welfare” or the “common good,” then selective exemptions from those laws is a morally objectionable injury to the general welfare. To be sure, not every law from which exemptions might be sought will impede the lawful pursuit of the general welfare, but many will—whether it is exemptions from zoning regulations for religious institutions, exemptions from mandatory vaccination schemes, or exemptions from a ban on knives in the schools.’ Leiter calls such measures burden-shifting exemptions. It is hard to find fault with his conclusion that ‘Burden-shifting exemptions seem prima facie objectionable….’

The next step is the reasonable proposal: ‘perhaps we should simply abandon the idea that there should be exemptions from generally applicable laws, except when no burden-shifting is involved?’ Observing that a regime of exemptions intentionally privileges religious claims of conscience, Leiter concludes that the selective application of tolerance to the conscience of only religious believers is not morally defensible.

It might be thought that Leiter has religion in his sights, but no. Just as he finds no case for privileging religion and the religious, he insists on the avoidance of measures which target religion, taking the case of the French headscarf ban or, more precisely, the prohibition of the wearing of symbols or garb which show religious affiliation in public primary and secondary schools. Ostensibly the law of 15 March 2004 is non-discriminatory, affecting all religions equally. In reality, of course, it is aimed at the Muslim headscarf or veil worn by Muslim girls. Leiter finds that this instance of French secularism (laïcité) is, in fact, a case of impermissible intolerance of religion.

Leiter’s conclusion on this point is generous towards religion, specifically the Muslim religion. A contrary argument is that the state has an obligation to intervene, to protect Muslim girls from the misogynistic oppression which the head-covering represents—at least while they are in a public school, and perhaps with a positive,  liberating influence on their future lives. Leiter does not address this argument.

The book and this review are based on the primacy of human rights. Not everyone sees the world that way, of course. At an IQ² debate in Sydney last year, Uthman Badar, spokesman for a radical Muslim organisation which seeks to restore the caliphate, declared that he was not a liberal; free speech was not the default setting. Secular liberalism was imposed on both West and East by stealth and military strength. Judaism and Christianity had crumbled—not so Islam, which still resisted.

And GenR8 Ministries, a provider of chaplains to Australian public schools, wrote in its submission to the Freedom of Religion and Belief in the 21^st Century project run by the Australian Human Rights Commission:

We take the view that ultimately rights do not derive from governments. The assumption that rights come from governments or from ourselves is a form of blasphemy and idolatry (worship of the state/giving God’s role to the state/making human beings the measure of all things) in our view. We believe we have them by virtue of our creation by a loving Creator (whatever view we might have of the mechanisms and time with which he created us), and these rights as well as their related responsibilities and obligations are to be found in the Bible as God’s revelation.

Particularly in the light of examples like these, Leiter’s questions and step-by-step reasoning merit very close attention. The book Why Tolerate Religion is not an easy read but it is important, rigorous and challenging.