Jacques Maritain, a prominent philosopher involved in drafting the United Nations Declaration of Human Rights in 1948, famously observed, “We agree on these rights, providing we are not asked why. With the ‘why,’ the dispute begins.” This doesn’t mean that “why” questions are unimportant or unnecessary. Rather, it acknowledges that within a pluralistic context it is prudent to achieve agreement on the “what” and not insist on the “why.”
Maritain’s pragmatic prudence, however, is not enough to satisfy University of Chicago law Professor Brian Leiter. If the dust jacket of his recent book Why Tolerate Religion? is to be believed, these 133 breezy pages succeed in “demolishing old nostrums and sowing fresh insights,” which, if followed through to their logical conclusions, would see the elimination of religion as a special category of human rights.
Leiter makes his case by deploying John Rawls’s deontological arguments and John Stuart Mill’s utilitarian approach. A philosopher would undoubtedly highlight various nuances but from my public policy practitioner’s perspective, this framing reduces to a straightforward, albeit narrow, understanding of the public square. Rawls’s perspective amounts to insisting that the only arguments that can be used in public in a liberal democratic society are those that are based on public reasoning. Rawls recognizes that people have personal religious or philosophic views—”comprehensive doctrines” in his parlance—but he insists they have no carriage in (nor should they influence) the public square because they rely on reasoning that is not available to everyone in society. Mill’s perspective focuses on the harm principle. There is a strong emphasis on freedom and a bias to maximizing freedom within society, as long as the exercise of that freedom does not result in any harm to anyone else. Using this test, there is no difference between religious or conscience claims in the public square as the test regards the impact of those claims and not their origin.
As an example, Leiter juxtapositions the rights granted to Sikh youth to wear a kirpan to school, on the grounds “that freedom of religion requires the state to tolerate an exception to the general prohibition,” with the lack of exemption provided to a rural youth who would carry a knife that he had been given as a rite of passage into manhood. “There can be no doubt in this case about the conscientious obligation every boy of knife-bearing age feels to carry his knife with him, even in school. And there can be no doubt that were his ability to carry his knife abridged, his identity as a man devoted to his community would be destroyed.”
It will come as no surprise given this framing, that Leiter comes to the conclusion that special legal protection for religion is unnecessary. Leiter puts the burden of proof on religion to make the case that it deserves a special category of protection. “We are still looking for a principled argument for tolerating religion qua religion; only if we found such an argument would we then have to address the question about the limits of that toleration by reference to side-constraints.” Finding nothing in religion to distinguish its public utility from philosophy, therapy, or morality, the conclusion is that “freedom of conscience” is an adequate category to provide whatever legal protections are needed, rendering special protection for religion an outmoded concept.
It is easy to disagree with Leiter given that he and I clearly have different philosophic presuppositions within which we would couch our arguments. His reliance on Rawls and Mill, with a very cursory dismissal of other philosophic frameworks that have currency in our day, is the root of our difference. Cardus is a think-tank which emphasizes the important role of other institutions besides the state and the individual choices of the free market in shaping a prosperous society. But Leiter’s definition of religion factors out all institutional elements. (It might be noted that he has this in common with the Obama administration whose requirements for religious organizations to cover health services such as birth control for employees treats religion as entirely a “private” matter of conscience and not as having any “public” institutional dimension. On the other hand, public policies that allow for preferential hiring for religious organizations to those who share their religion reflect a different philosophic understanding of religion applied to public policy.)
His definition of religion highlights four factors: First, religion issues categorical demands on its adherents which much be obeyed, regardless of the situation; second, it does not answer ultimately to evidence or reason; third, it involves beliefs that explicitly or implicitly deal with a metaphysics of reality; and, fourth, it provides an explanation that makes tolerable the existential facts of human life, including suffering and death. Religion understood this way is entirely a personal choice and private belief, and although the first factor does speak of demands which must be obeyed, Leiter pays virtually no regard to the notion of institutional religious authority. Religion, according to Leiter, is whatever you want it to be. And since we cannot agree on that, he suggests using the power of the state to define religion into the margins without seeming to realize the implicit intolerance that his suggestion implies. Those who understand religion to be something more than individual conscience are out of luck in equal recognition in Leiter’s public square.
In his New York Times review of this book, legal scholar Stanley Fish notes that having gutted religion of its substance, it is no wonder that Leiter can’t find reasons to protect it.
“Religion is saved and accorded limited protection, but at the expense of not having its doctrinal tenants taken seriously. (Not much mention of virgin births, salvation and damnation in these pages, except as instances of ‘unwarranted,’ not to say, crazy beliefs.) Religion, philosophy, morality, therapy, what’s the difference? In Leiter’s argument, they present the same problem for the liberal state, the problem of marking out the limits of toleration; distinctions between them are finally inessential.”
Not only are Leiter’s arguments diminished by being framed in the context of philosophies that effectively reduce both the content as well as the institutions of religion entirely to the private realm, but the book deals with the questions as if they were theoretical philosophic questions with hardly an acknowledgement of the historical circumstances that gave rise to religious toleration clauses in the constitutions of the leading liberal democracies in the world. One can legitimately raise arguments as to whether it is for better or worse, but one cannot avoid these debates by adopting definitions of religion that predetermine your preferred answer and pretend there is no impact on how people live together.
Leiter’s response to these sorts of arguments can be predicted based on how he addresses the arguments put forth by John Finnis, “a distinguished philosopher of law and Aquinas scholar, as well as a devout Catholic all of his life, (who) represents the intellectual best contemporary Thomism has to offer.” He quotes Finnis as some length, dismisses his arguments as not matching scientific standards, and proclaims: “The dialectical bankruptcy of Thomism, which is apparent to everyone outside the relevant sectarian group, will not, I am afraid, salvage an argument for appraisal respect of religious conscience.”
But these matters are not abstract ideals that can be adequately addressed with concepts such as toleration, rights and religion—as if these were philosophical problems to be solved. We are on the terrain of everyday questions about how to live peaceably alongside each other in the religiously plural societies we find ourselves in today. (One could contrast Leiter’s approach with the more nuanced appreciation of religion in GÃ©rard Bouchard and Charles Taylor’s report on “reasonable accommodations” in Quebec.)
Leiter deals at some length with the French policy banning ostentatious religious symbols such as Muslim headscarves, Jewish skullcaps, or Christian crosses, and concludes it is “a case of impermissible intolerance of religion.” The only rationale for restricting such liberty of expression would be if specific harm can be shown that comes from such religious expression (as might be the case, for example, with Nazism in Europe) in which case tailored bans might be justified. Leiter proceeds from the negative example to positive ones, suggesting that all states do rely on some shared “vision of the good” which it may promote as long as it does not prevent minorities from expressing alternative visions of that good. He covers a range of issues from the establishment of religion or irreligion to whether state funding for a variety of sectarian schools would constitute intolerance (for the record, he does not think so.) At the end of the day, however, given the definition of religion he started with, it is no surprise that there is nothing distinctive about religion to warrant a special category of toleration. His liberal commitment to equality and the greater good leads him to the book’s conclusion: “Toleration may be a virtue, both in individuals and in states, but its selective application to the conscience of only religious believers is not morally defensible.” The Sikh youth is out of luck—no religious toleration clause allows us to understand the kirpan to be anything other than a weapon, even if the evidence is overwhelming that it is unlikely to be used as such.
At the end of the day, the failure of Leiter to account for religion as anything more than a set of personal choices that are akin to the non-religious conscience choices of others made this book a frustrating read. Like the beleaguered parent never able to satisfy the “why” questions from the back seat, there are entirely different frameworks at work and the likelihood of finding satisfactory answers is minimal. I understand that using that analogy implies a characterization of Leiter’s understanding of religion as childish—hardly a charitable posture to adopt, especially when dealing with issues of toleration and respect. However, it must be pointed out that he defines away as irrelevant those aspects of religion which do not fit his scientific framework, dismissing respected scholars of a different camp as “bankrupt” and boldly concluding that those who disagree with him are supporting that which “is not morally defensible.” It doesn’t seem too unfair to describe this as a very intolerable form of toleration.