JOANNE MYERS: Good afternoon. I'm Joanne Myers, director of Public Affairs Programs, and on behalf of the Carnegie Council, I would like to thank you all for joining us.
Our speaker is Brian Leiter. Professor Leiter is the Karl Llewellyn Professor of Jurisprudence and director of the Center for Law, Philosophy, and Human Values at the University of Chicago. In addition to teaching law, he is involved in many other activities, as a reading of his bio indicates. I believe you all received a copy and will agree that it makes for interesting reading.
Professor Leiter will be discussing his new book, which is provocatively titled Why Tolerate Religion?. In asking this question, like any seasoned law professor, our speaker raises many interesting issues as he systematically challenges one of the most enduring puzzles in political philosophy and constitutional theory, when he asks why the state should have to tolerate exemptions from generally applicable laws when they conflict with religious obligation, but not with any other equally serious obligations of conscience. In other words, why is religion singled out for preferential treatment in both law and public discourse?
Religious toleration has long been the paradigm of the liberal ideal of understanding our differences. America was founded on the premise that all religious practices would be tolerated, so much so that religious liberty is protected by the Establishment Clause of the Constitution, which may be more familiar to you as the separation of church and state. This provision states that the government must maintain a course of complete official neutrality toward religion and cannot favor religion over non-religion.
In concert with this is the Free Exercise Clause, which is the textual guarantee of people’s right to practice religion and to hold and act on religious beliefs. Additionally, the First Amendment gives us assurances of our right to free speech and provides some added protection.
But even with these stated guarantees, Professor Leiter posits that so far no one has been able to articulate a credible argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices.
While you may anticipate where our speaker is going with his argument, what you don't know is how he defends his positions. But if you join me in giving him a very warm welcome, I know he will be happy to present his case.
Professor Leiter, thank you for joining us this afternoon.
BRIAN LEITER: Thank you so much. Thank you, Ms. Myers, and thanks to the Carnegie Council for having me here this evening, and thanks to you for coming.
Let’s start with an example to make the issue concrete. Imagine it’s the first day of middle school and a 13- or 14-year-old boy arrives at school for the new school year and he has his dagger strapped to his belt. The principal takes note, calls the police, and says, “We have a boy who has brought a weapon to school.” Of course, weapons are prohibited in the school.
It seems like a simple case and should end right there. But it won’t if, in fact, the boy is a member of the Sikh religion. In the Sikh religion, like many religions’ cultural traditions, there are rites of passage that mark the arrival of manhood. In the Sikh religion, a boy, at about the age of 13 or 14, acquires an obligation to carry what’s called a kirpan, which is a ceremonial dagger. However, I want to emphasize that many of these ceremonial daggers are actually daggers. That is, they are real knives.
In many jurisdictions Sikhs have challenged the law that prohibits the carrying of the kirpan in the schools, and in many cases, including in the United States and a major case in Canada in the Canadian Supreme Court about five years ago, they held that the Sikh child does have the right to carry the kirpan in the schools, notwithstanding the ban on weapons in the schools.
This is sort of a concrete example of what’s being required. The law, needless to say, disapproves of the carrying of weapons in the schools. But the state is then asked to tolerate an exception to that rule so that an individual can discharge his religious obligations of conscience.
Now imagine a slightly different case—not a wholly fanciful case. I taught for many years at the University of Texas. Texas is a big state. Many parts of Texas are quite rural. There are families who have spent generations working farms and ranches in parts of both eastern and, especially, western Texas.
One might imagine in such a family that they, too, had a certain kind of tradition to mark the passage to manhood. Namely, that when a boy was 13 or 14, he received from his father a knife that the father had received from his own father, who had, in turn, received it from his father, and so on, going back a century. And this was a significant family tradition. A mark of the boy becoming a man is that he receives the knife that his father had received from his father and so on, and he’s expected to carry it with him, because a knife turns out to be rather useful on a farm in all kinds of contexts.
If that boy, however, shows up on the first day of school with that knife on his belt, he’s not going to get an exemption. He can argue that, “This is very important. It’s central to the traditions of our family. I feel I must do this. It would disrespect my parents and my grandparents were I not to do it.” He’s going to be out of luck. He will not get an exemption from the law.
This is the puzzle that I think is presented by the law of religious liberty, not only in the United States, but in other Western democracies, which is that we grant exemptions—not always, but sometimes we grant exemptions—from laws of general applicability to people who claim that it conflicts with their obligations of religious conscience, but if somebody claims an obligation of conscience that’s not religious in character, they end up having no standing to ask for a similar kind of exemption.
Now, there’s one exception to this, which has to do with conscientious objection to military service, though it’s a funny kind of exception. Some of you may well remember that this issue arose during the military draft in the Vietnam War, which was the last time we had a draft in this country. The United States Supreme Court actually took a case in which they said that someone who did not believe in God could nonetheless be a conscientious objector to war and be exempted from military service.
Now, the interesting thing about this case, especially from a lawyer’s point of view, is that they did not treat this as a matter of constitutional law. It was not a matter of interpreting the First Amendment protection of the free exercise of religion to which Ms. Myers alluded in her introduction. They treated it strictly as a matter of statutory interpretation. They said, “We are interpreting the Selective Service Registration Act,” which authorized the military draft, “to create an exemption for military service for those who are pacifists, even if they don't have religious grounds for their pacifism.”
It was no accident that they treated it as a matter of statutory interpretation. Were they to have constitutionalized the idea that free exercise of conscience creates a grounds for objecting to laws, the doors would have been open to challenging every law under the sun, in principle. I’ll come back to that particular dilemma.
But here’s the other aspect of the puzzle which is curious. When you go outside the United States, you look at the Canadian Charter, which is the Canadian constitution, the German constitution, the European Convention on Human Rights, you look at the constitutions of the other major Western democracies, and they all mention liberty of conscience as well as religious liberty. The American constitution does not. The American constitution strictly talks about the free exercise of religion.
But even in these other countries which actually mention liberty of conscience, they all add to that “and freedom of religion,” which you might think was redundant if liberty of conscience was really enough. Then, when you look at the actual cases where people were successful in challenging the laws, it turns out to be no different than in the United States. That is, only those who have religious foundations for their objections to the application of a law are ever successful in getting an exemption.
So my question is: Is there a good moral reason for thinking that religious claims of conscience are more important than other claims of conscience, such that only they should be entitled to exemptions from the law? And that’s what I’m after with the title Why Tolerate Religion?
We know what the historical reason is for the special pride of place given religious liberty in the constitutions of the Western democracies. There’s a very clear historical reason. It has to do with the early modern wars of religion, from which people drew a very useful lesson, which was that we’re not going to survive as a civilization if we spend all our time trying to kill those whom we regard as heretics. We will be in the Hobbesian state of nature, with “the war of all against all.” That, as it were, gave birth to the tradition of religious liberty with which we’re familiar.
But the question I would like to ask is not a historical one, but, as it were, a philosophical, jurisprudential one: Namely, is there a good moral reason why we should treat religious liberty as more important? Let me say a little bit about what I mean by toleration, by the idea of toleration. “Toleration” is a fluid concept. It can mean different things in different contexts. I’m interested in what I call principled toleration. With “principled toleration,” I have in mind the following scenario.
We have one group—say it’s a dominant group in society—that actively disapproves of what another group believes and does, but at the same time they think there’s a good moral reason to let them do it anyway. Of course, on its face, toleration is a little puzzling. If you disapprove of what these other people are doing, if you think it's very wrongheaded, why put up with it? But if you believe in principled toleration, you believe that sometimes there are moral reasons to let people do things and believe things to which you fundamentally object.
That means, first off, that there’s no issue about toleration when we’re in a situation of mere indifference. If one group doesn’t give a hoot about what the other group is doing, then there’s no issue of toleration to arise. To be clear, sometimes indifference is the preferable moral attitude.
If I move into a neighborhood and my neighbor comes over on the first day and says, “Oh, I see you’re Jewish. I don't really like Jews, but we tolerate them in the neighborhood,” that would be a little alarming. We would hope, rather, that our neighbors would be indifferent to the religious practices and traditions and background of the people who live around them. So indifference is not the issue.
Another thing that’s not the issue for me is what I might call Hobbesian compromise, after the English political philosopher Thomas Hobbes. That is, sometimes one group will put up with what another group does, not because they think there’s a moral reason why they should allow them to continue as they do, but because it’s too costly to try to stop them. That was the lesson of the early modern wars of religion: We are going to put up with the practices we disapprove of, but only because we can’t get away with successfully stopping it without intolerable cost—namely, the intolerable cost of the war of all against all.
I don't want to knock Hobbesian compromise. It’s often very important, and sometimes it’s the best we can hope for in certain circumstances. But notice that Hobbesian compromise is, as it were, a less secure foundation for practices that the dominant group might disapprove of because it works only to the extent that the dominant group feels they can’t successfully get away with suppressing the beliefs and practices of which they disapprove.
But where principled toleration is in place, the dominant group, even if they could get away with changing the practices and beliefs of groups they disapprove of, refrains from doing so because they think it's the right thing to do. Why might we think that? What kinds of moral reasons are there for principled toleration in this sense?
I canvas in my book two lines of argument that have been prominent in the modern philosophical tradition. One I associate with the great American political philosopher John Rawls, from his 1971 book, A Theory of Justice, and the other with the great English utilitarian philosopher, John Stuart Mill. Let me just briefly describe those arguments.
Rawls says: "If you want to understand what justice is, what justice would require in a society, we need to undertake a certain kind of thought experiment." The thought experiment goes like this: Imagine we’re in something he calls “the original position”—that is, a position where we’re going to choose the foundational principles that will govern our society. We want these principles to be fair and just principles. In order to ensure that they are, he says we have to make a decision about these principles behind what he calls a veil of ignorance. The idea of the veil of ignorance is that in choosing the principles of justice, you don't know your own place in the society in which you might find yourself. You are stripped of the knowledge of whether you will be rich or poor, white or black, Christian or Jewish, and so on. You simply don't know.
The thought here, the intuitive thought, is that genuine principles of justice will be impartial, in a way. The idea of the veil of ignorance is to wash out the self-interested considerations that might corrupt people’s judgment about what society would be like. Rawls’s conclusion is that in such a situation, one of the principles of justice that people would settle upon would require a broad scope for liberty of conscience. And he’s quite specific that it’s liberty of conscience, not just liberty of religious conscience.
One thing people do know, in Rawls’s thought experiment of the original position, is that they will have a conscience. That is, they know that they will be people who have a sense of right and wrong, of what must be done, about what’s obligatory, and so on. On the assumption that people are a bit risk-averse, which is an important assumption Rawls makes, if you know you’ll have a conscience but you don't know whether you will be in the dominant group in a society, it will be very important to protect liberty of conscience so that there is a sphere in which you can still act on your sense of right and wrong, even if it turns out that the dominant groups in society don't share your view about that.
That’s the Rawlsian argument. It derives broadly from what’s called the deontological tradition in morality associated with Immanuel Kant. The emphasis is on the rights that individuals have—in this case, a right to the liberty of conscience.
Interestingly, John Stuart Mill, in the utilitarian tradition—which is often thought to be this conflicting tradition with the deontological tradition—also arrives at a very similar conclusion. The utilitarians think that what’s morally right and wrong depends on what would maximize utility or happiness in society. Mill thinks, famously, that discovering the truth will maximize utility. This is quite important to his argument for liberty of conscience. He says if we discover what’s true, if we come to true beliefs—not just true beliefs about the natural world, true scientific beliefs, but also true beliefs about the best ways of life, which he thinks we can arrive at—we’ll all be better off.
Why does that require a certain scope for not just liberty of conscience, but also liberty of speech, freedom of association, and other familiar kinds of liberties?
Mill’s thought goes something like this: Let’s suppose we were already in possession of the truth. But Mill is also a fallibilist—that is, he thinks we can never be absolutely certain—so even though we think we know what’s true, we might be wrong, and we have to be aware of that. Well, we’ll never figure out we’re wrong if other people can’t contradict us, if other people can’t express different kinds of views. We may think we know what’s true, but we could be wrong. If others can’t express contrary views, we are unlikely to figure it out.
But even if it turns out that we think we know what’s true and we’re right, it’s still useful to have people expressing contrary views, because we will then be clearer about the reasons why we believe what we believe. We won’t just, as it were, hold it dogmatically; we will understand the reasons for why we hold our beliefs because they are subject to challenge by other people.
But Mill goes one step further than this—and this is an important fact about John Stuart Mill—which is that he thinks that there are better and worse answers to the question, how should we live? How ought we to live? Mill famously says—many of you may have heard this slogan—“Better to be Socrates dissatisfied than a pig satisfied.”
He is here poking a bit of fun at his utilitarian predecessor Jeremy Bentham, who thought all pleasure was basically the same; the only question was quantity. On the Bentham ideal, you might think being a nice, fat pig rolling around in the cool mud is very pleasant, whereas if you’re Socrates, you’re always dissatisfied, you’re never happy with anybody’s answers, you’re always getting into quarrels with people, and so on.
But Mill says, "No, it’s in fact better to be Socrates dissatisfied than the pig satisfied, because pleasures and happiness differ not just in their quantity, but also in their quality."
But how do we know? How do we know what the qualitative differences are between kinds of happiness? Mill says we know by virtue of asking people who have had experiences of different kinds, different ways of living. Strictly speaking, someone would have to know what it’s like to be Socrates and what it’s like to be a pig in the mud. Nobody really knows that.
But secondarily, of course, we can see the evidence of different kinds of life that people live, in order to get an informed view of which kinds of life really are conductive to happiness. So Mill says we need a wide scope for what he calls experiments in living. There has to be room in a society for people to experiment with different kinds of life, to provide us the evidence for assessing which kinds of lives are better and worse than other kinds of lives.
So Mill, like Rawls, though for different reasons, ends up with the conclusion that we need, in fact, a fairly wide scope of liberty of conscience, of free expression, but also to experiment with different ways of living.
But of course there are limits. In Mill’s famous formulation, the limit comes from what he calls the harm principle. The harm principle has been very influential in Anglo-American law. The harm principle is captured in a saying that I’m sure you are all familiar with, “My freedom to swing my fist ends at your nose”—that is, the limit to my freedom is that I can’t cause harm to other people. Physical harms present clear-cut cases. Psychological harms present slightly harder cases.
It’s crucial, though, for Mill, that a harm that doesn’t count is simply that other people are offended by thinking that other people are doing things they disapprove of. In the battles, for example, in England over the decriminalization of homosexual sodomy in the 1960s, the argument that prevailed was basically a Millian harm principle argument—that is, the argument was that people having consensual homosexual relations don't harm anyone. The fact that it offends some people who disapprove of homosexuality is not a reason for the law to, in fact, criminalize the conduct.
So the harm principle sets a certain kind of limit on these arguments for liberty of conscience and liberty of speech. Rawls actually accepts something very close to that, but I won’t go into the details about that.
So there are two kinds of moral arguments for why we ought to think liberty of conscience is important.
The question I then take up in the book is: Is there any reason, given these arguments—and I rely on these arguments because they have a fairly wide intuitive resonance; they actually are manifest in our law and policy, the underlying intuitions, in different ways—is there any reason to think these kinds of moral arguments would single out religious conscience as more important than other kinds of liberty of conscience?
To that end, I have to take up the question of what’s distinctive of religious conscience. What makes a claim of religious conscience different than other kinds of claims of conscience? The business of trying to characterize what’s distinctive of religion is a vexed one. So let me just make a brief methodological comment about what I’m trying to do here.
When we try to characterize something like religion or religious conscience, we start with certain pre-theoretical views about obvious cases of religion. If I give you a characterization of religion in which it turns out that Catholicism isn’t a religion, something went wrong. We ought to have an account of religion that captures some of the paradigm cases that we are all familiar with.
That, of course, immediately eliminates certain kinds of things you often hear people say. You say, “Well, religion has to do with belief in a supreme being.” You’re going to have to add an “s” to that—supreme beings—if you’re going to get Hinduism, because they have multiple supernatural beings that are part of Hindu cosmology. Much more seriously, you knock out Buddhism, because Buddhism doesn’t, in fact, involve belief in a supreme being.
So I focus on different aspects of what seems to me distinctive of religious claims of conscience. I identify three. I want to emphasize these are supposed to be a conjunctive set. That is, these are all necessary conditions, because individually they can characterize many different kinds of claims of conscience.
The first, which is characteristic of all claims of conscience, is what I refer to in the book as categoricity of demands. That is, it is characteristic of all religions that they make certain categorical demands on their adherents. There are certain things adherents absolutely must do that are not optional. Of course, if they didn’t do that, they wouldn’t come into conflict with the law. It’s precisely because the religion says you must carry the ceremonial dagger with you once you are a boy at the age of 14 in the Sikh religion that a problem arises when the law says you can’t bring that dagger with you into school.
But all claims of conscience, all demands of conscience, whether religious or otherwise, have this characteristic that they impose categorical demands. When we say we feel, as a matter of conscience, that we have to do something, we’re saying we must do it; it’s not going to be negotiable.
The second characteristic of religion—and this one is more distinctive of religious claims of conscience than some others—is that all religions are characterized by certain kinds of beliefs that are insulated from ordinary standards of reasons and evidence. And by ordinary standards of reasons and evidence, I mean the standards we use in ordinary life that are actually continuous with the standards that are employed in the sciences. All religions involve some beliefs that are insulated, that are taken not to have to answer to those kinds of standards of reasons and evidence.
What I’m trying to capture here is the intuitive idea that in all religions there are certain beliefs people accept “on faith,” as it’s often put. But in ordinary life, there’s an awful lot we do using standards of reasons and evidence that have nothing to do with faith. As I like to say, nobody crosses the street, especially not in New York, on faith. We rely on perceptual evidence—what color is the light? Do we see cars? We do an inductive inference over past experience—how fast the cars move from one end of the block to the other.
Of course, these are standards of evidence that then the sciences refine and formalize, enabling us to predict how the world around us works. But it is characteristic, I claim, of all religions that at least some of the beliefs—not all the beliefs, but some beliefs—are taken to be, as it were, insulated. They don't answer to those kinds of standards of reasons and evidence, but they are still believed nonetheless.
The third characteristic of religions, I suggest, is that all religions, in some way or another, try to provide what I call existential consolation. By existential consolation, I mean roughly this: Not to spoil your evening, but the fact is that everyone in this room will die one day. We will all endure loss, pain, suffering misfortune. And all religions, in one way or another, try to help their adherents understand and deal with these facts about the existential situation of human beings. Of course, the existential consolation function of religions is one of the reasons why religions are so important to people, because these facts of human life are universal.
What’s characteristic of religions claims of conscience is that they involve this conjunction of categorical demands, insulation from reasons and evidence, and a certain kind of existential consolation function. Is there any reason to think that liberty of religious conscience is more important, from either the Rawlsian or the Millian perspective, than other kinds of claims of conscience? I argue that there is not.
But be clear about what I’m arguing. I’m arguing that there are reasons to tolerate religious claims of conscience, but those are the reasons for tolerating liberty of conscience generally; they are not specific to religion.
I think, partly in the interest of time, I’m going to save some of the details about why I think the Rawlsian and Millian arguments wouldn’t single out liberty of religious conscience as more important for the Q&A. But I’ll just observe that it’s not obvious on its face that claims of conscience that have the feature that some of their beliefs are insulated from reasons and evidence are necessarily going to maximize utility and make us happier than other kinds of claims of conscience.
If the argument of the book is persuasive—that is, if the reasons for religious liberty are not specific to religion—what should we do with the law? What should we do with the law, which is currently constituted in the United States and de facto in other Western democracies—all of these places treat claims of religious conscience as special? If I’m right that there isn’t a reason to treat them as more important than other claims of conscience, what do we do? There seem to be two pretty obvious possibilities.
The first possibility would be to create a scheme of what I call universal exemptions for claims of conscience. Now, I guarantee no legal system will adopt this approach. First of all, it would be almost tantamount to legalizing anarchy, because it would mean, in effect, that every single law actually operates as follows: You have a legal obligation to do X unless you have a very good conscientious reason not to do it. If we open the door, of course, to that possibility, then the courts would be overwhelmed with legal challenges to laws based on claims of conscience and courts would be put into the very difficult position of having to adjudicate whether these claims of conscience were actually genuine claims of conscience.
This has happened even in the context of religious liberty. Some of you, if you are lawyers, may recall that there was a case involving the Church of Marijuana. The Church of Marijuana wanted an exemption from laws prohibiting the smoking of marijuana on the grounds that they had a religious obligation to do it. The courts rejected that. They decided this was a bogus church. And it was quite clear on the facts that it was.
But if we open the door to any claim of conscience, then courts have to get into the business of deciding whether any particular person challenging a particular law sincerely feels they must do this. The courts are not going to be in a good position to adjudicate that. So as a practical matter, it seems to be a very bad outcome.
But it’s not just worrisome as a practical matter. It seems to me it also raises a different kind of concern. When we grant exemptions from laws of general applicability, sometimes we frustrate the purpose of those laws. If those laws are just and fair laws, as I say in the book, if they really promote the general welfare in some plausible sense, then granting exemptions sometimes frustrates the efforts of the law to promote the general welfare.
Here’s a very tangible example and a very live issue in certain parts of the United States right now—not so much in New York or Illinois, fortunately, but certainly in California and Washington and the West Coast—laws requiring mandatory vaccinations of children. In every state you can get a religious exemption from complying with the mandatory vaccination law. In some states you can actually get what they call a philosophical exemption, though it’s not quite clear what they mean by “philosophical” and there doesn’t seem to be a lot of oversight of this.
But this is a case where the exemptions are what I call burden-shifting exemptions. That is, if you exempt certain people from mandatory vaccination laws, you actually create risk and shift burdens onto other people in the population, which is, of course, what we’re seeing now on the West Coast of the United States, where we see outbreaks of whooping cough, measles—diseases that would have been eliminated by mandatory vaccination schemes. It seems to me that mandatory vaccination schemes do promote the general welfare, and when you grant exemptions for reasons of conscience, religious or otherwise, you are shifting burdens onto other people in society in a way that is fundamentally unfair.
The other approach would be what I refer to as the no-exemptions approach, which says if the law is genuinely neutral—that is, there are certainly plenty of laws that purport to be neutral, but, in fact, it’s really cover for a pernicious intolerant purpose. In the book I actually argue that the French law about ostentatious religious symbols in the school was a case of a purportedly neutral law that was really, in fact, a case of intolerance against Muslims in particular.
But if the law is genuinely neutral and it promotes the general welfare, then there should be no exemptions given to it if these exemptions would shift burdens onto other people. I want to emphasize that.
Sometimes exemptions from the law are not burden-shifting, and it seems to me in those cases exemptions probably should be given for legitimate conscientious objection. A very simple example that will be familiar to everyone who has ever had a driver’s license: the rules governing driver’s licenses always require that your photograph be taken without any headgear. But why not give an exemption to the Sikh man who must wear his turban or the Orthodox Jew who must wear his skullcap to that law? It doesn’t shift burdens on anyone, it doesn’t defeat the purpose of the law, and it allows the individuals to discharge their religious obligations. That’s an example of a non-burden-shifting exemption.
But with respect to exemptions that would shift burdens, it seems to me that it’s fundamentally unfair to the rest of society to grant exemptions to those laws for conscientious objections.
Let me just conclude by mentioning that this view I’m describing, the no-exemptions approach, is roughly the view that the United States Supreme Court adopted in 1990, in an opinion by Justice Antonin Scalia. This was a case called Employment Division v. Smith. Mr. Smith was a member of a Native American religion that required its adherents to use peyote, which was an illegal narcotic.
Now, the thing about peyote which makes it very different from marijuana—not that I know this from firsthand experience—is that peyote is apparently quite disgusting. It is an illegal narcotic, but there’s nothing pleasant about using it. It tastes awful. So you really only do it if you feel you have a religious obligation in order to use it.
Well, he felt he did. He used it. He got in trouble for using peyote as part of his congregation and he lost his job. He was fired. He then filed for unemployment benefits and was denied them on the grounds that you were not eligible for unemployment benefits if you lost your job because of use of an illegal narcotic. That is what he challenged in a case that went up to the United States Supreme Court.
What Justice Scalia essentially said is very close to what I described as the no-exemptions approach. He said: A general law of neutral applicability, such as laws prohibiting the use of certain illegal narcotics—the state doesn’t have to create exemptions from those laws just because people have religious objections to them. So Mr. Smith was out of luck.
As I said, this was the position the United States Supreme Court adopted. It is not today the law of the land. As my research assistant, who scrutinized lots of cases in connection with the work on this book, said, “Congress and the states adopted a scorched-earth policy towards Employment Division v. Smith.” There was a terrible reaction to it.
Prior to Smith, it was much easier for someone with a religious objection to a law to get an exemption. Many states—probably all of them at this point—interpreted their state constitutions as providing exemptions from laws of general applicability if they burdened people who had religious objections to them.
The federal government—this went through several iterations, but in the end the federal government adopted a rule that basically constrained the federal government not to enforce federal laws that would unnecessarily burden the free exercise of religion.
So even though the official interpretation of the First Amendment of the United States Constitution, according to the U.S. Supreme Court, is what I’m calling the no-exemptions approach, in practice it has almost no bite at this point. But, of course, whether that will change in the future is something that remains to be seen.
QUESTION: Susan Gitelson.
You have created a very comfortable, relatively speaking, island of Anglo-American jurisprudence, the rule of law, where we can say, “Why tolerate religion?” But some of us most of the time are thinking of the whole world and we’re thinking of all of history. If that’s the case, then in the various creation stories, whatever it is—and let’s take our own Judeo-Christian tradition—God created the earth and gave us laws to follow—not for us to say we’re going to decide should we or shouldn’t we, but rather, “this the law and this is what you’re supposed to do.”
It’s not theoretical today, because we see what’s going on in the Islamic world, where many fundamental people are pushing Islamic law as the basis of all of life and supreme to the law courts and everything else. Even where there have been secular societies, as under the Ba'ath in Syria and Iraq, the tendency, as we see in Egypt very strongly, has been to move toward religion.
I’m disturbed. I would like you to go to the larger question. It’s not why we tolerate religion, but what happens when people believe fervently that religion given by the supreme being, whoever it is, really has to dominate the whole society?
BRIAN LEITER: It’s absolutely true that we don't even have an opportunity to ask the question of why tolerate religion or different religions or non-religion or liberty of conscience when we’re dealing with regimes that are fundamentally intolerant, That’s really what you’re talking about here.
The phenomenon is, sadly, not just confined to the Islamic world. As I said, I lived in Texas for many years. I used to refer to them—they didn’t like this—as the “Texas Taliban.” But there were plenty of forces in the political sphere in Texas who wanted Texas to conform, not to sharia law needless to say, but to their particular understanding of Christianity.
Those kinds of religious movements are fundamentally intolerant. They haven’t learned the lesson of principled toleration. In some cases they haven’t even learned the lesson of Hobbesian compromise.
You’re quite right. The book isn’t addressing those people. But I think, because they are intolerant, as it were, they were already outside the scope of this discussion. They ought to learn toleration to start, even if it’s only as Hobbesian compromise. Hopefully, one day they will get to the point of principled toleration.
Certainly this book is against the background of assuming that there are reasons to be committed to principled toleration, as I take it, most of the Western democracies largely are, even allowing for some of their different understandings of it.
QUESTION: David Musher.
Would you consider atheism to be a religion? Is your book an answer to the modern-day “religiousation” and secularization that we have seen?
BRIAN LEITER: Given the characterization I have given of religion, atheism would not, in fact, be a religion. There would be protection for atheist conscience that falls under the scope of liberty of conscience. But I take it that what’s characteristic of atheism is that beliefs are not presented as insulated from reasons and evidence.
I’m going to add a little caveat to that. I think there are some—the New Atheists, as they are called, the late Christopher Hitchens, Richard Dawkins, Sam Harris, people like that. People often chide them and say they are as bad as the fundamentalist religious types. I think the reason they say that is, partly, sometimes those folks almost do argue as though everything they say is insulated from reason and evidence. That seems to me a mistake. But I don't see that there is any reason one has to go that way.
I think the New Atheists make one other kind of mistake. This is something I emphasize quite a bit in the book. They make the mistake of thinking that just because some religious beliefs are false in their view, therefore they are no good. I take the view—because I also studied the German philosopher Nietzsche, and I think he had a very important insight when he said that illusion and falsehood is essential to life. The fact that something we believe is false is not necessarily a fatal objection to it. I like to give the following example.
Some of you may be familiar with this psychological study which showed that the only people who have a correct perception of how others perceive them are the clinically depressed. In other words, most of us carry on, in part, when we are not in the grips—as hopefully we are not—of clinical depression, based on false beliefs about what other people think of us. There’s a very tangible sense in which a certain kind of illusion is clearly essential to a functioning life. So I do think it’s a mistake in this debate to think that the truth or falsity of beliefs is the entire issue. One might well think certain beliefs are false, but there are still very powerful reasons to tolerate them under the scope of liberty of conscience.
QUESTION: Laurence Meltzer.
I would like to take this down to the level of practical religion and a practical example—without offending anybody, I hope.
Christian Scientists believes that they can cure illnesses. Some parents don’t allow their children to go to doctors or do anything like that. It seems to me that that question as to when the law should step in for humane reasons comes into play. I would like you to talk to that question.
BRIAN LEITER: Of course, there are many real cases like this. Notice that the case is complicated by one thing, which is that we are talking now about the welfare of children. In most matters, their welfare is within the scope of parental authority.
But there are exceptions. That is, we have laws, laws that I think promote the general welfare, that are meant to protect the health, safety, and well-being of children. On that grounds, of course, parents can even lose custody sometimes of their children.
It seems to me that laws that protect the health, safety, and well-being of children, including laws that mandate that they receive certain kinds of lifesaving medical treatments, are laws that are neutral, that serve a general purpose of promoting the general welfare, and that parents should not in those cases have the right to exempt their children from lifesaving medical care, and perhaps even less serious forms of medical care as well.
A different kind of question is: What about the adult adherent of Christian Science or another religion that wants to refuse certain kinds of lifesaving medical procedures—say, a blood transfusion—which is another issue that arises? This seems to me a harder issue. In general, while suicide is illegal, we do recognize that, at the age of majority, individuals are entitled to a great deal of autonomy in managing their own affairs, including when they do so very badly. The question is whether this crosses a particular threshold.
I’m not sure what I think about that. But I think the child case is much easier. I think the laws that protect the welfare of children are sound, well-justified laws, and there should not be exemptions from them for any kind of claims of conscience, religious or otherwise.
QUESTION: Margaret Kennedy.
Your example of photographs being taken with or without hats for a driving license—what happens when it’s the extreme, the burqa, when you’ve really only got the eyes showing? Is that because the burden then shifts to one or two that might be doing it so that they won’t be recognized because they’re terrorists? What’s the logic? What level of hat can you wear?
BRIAN LEITER: These cases have actually arisen in the United States and elsewhere. They do require the individual to remove the burqa in order to get the driver’s license or to forgo getting a driver’s license. The reason there seems to me quite sound. The purpose of the photo is to make identification of the driver possible. Whereas wearing a turban does not interfere with that, wearing the burqa does. An exemption there really does shift the burden. It shifts the burden onto basically all other drivers, as well as the police, who are trying to maintain safety and order on the roads, being unable to identify a particular driver.
So that would be, in my terminology, a case of a burden-shifting exemption, and I wouldn’t give it. In fact, in the cases I’m familiar with they do not give the exemption in that case.
QUESTION: Sol Schreiber.
The federal government has taken an anti position on marijuana. The states, 12 to 14 or so, have taken the opposite position. Query: Where do you stand?
BRIAN LEITER: I have never actually smoked marijuana. It’s not even a question that I didn’t inhale. I have actually never smoked it. I preface it with this because this is not a self-interested answer.
It seems to me that there’s a pretty good case for legalization of marijuana. Right now we’re working that out as a society, partly through the federal system we have. The thing about the United States, which often surprises people in other countries, is that we have 51 legal jurisdictions. We have the federal law and then we have the law of the 50 states. If there’s an argument for that way of organizing society, it’s that, because states can choose to pursue different paths, we can, as it were, learn something by experimentation. As Justice Brandeis famously said many years ago, states become laboratories for trying out different approaches.
So we have some states legalizing marijuana. We will see in the coming years what the actual consequences of that are.
But notice that this issue is not one framed in terms of obligations of conscience, religious or otherwise. The Church of Marijuana to one side—they lost that one—these, I take it, are mainly arguments about questions of whether marijuana is sufficiently dangerous and the costs of enforcement connected to criminalization are really worth it, to make it sensible to continue to prohibit it as we do.
My guess is that we’re going to evolve in the direction of a kind of legalization where it will be more like, say, cigarettes and alcohol and less like cocaine and heroin.
QUESTION: David Musher again.
It’s not exactly clear to me what the basis of what your argument is for determining whether there ought to be an exemption or not. Is it only based upon whether it shifts the burden or not, or is there something else? What is the basis for an exemption?
BRIAN LEITER: I think, as a matter of fairness, if we’re going to allow any exemptions, they have to be for all possible claims of conscience. The basis for that is the moral basis for liberty of conscience. That is, where possible, we want to allow a scope for the exercise of liberty of conscience. But we shouldn’t create exemptions from laws of general applicability that promote the general welfare. I am making a very important assumption here, that the laws we are talking about basically just laws.
We shouldn’t create exemptions, even for obligations of conscience, religious or otherwise, to the extent that those exemptions shift burdens onto other people and defeat the protection of the general welfare. That’s basically the position I’m defending in the book, and it’s basically, as I said, the position the Supreme Court adopted briefly and it was briefly the law of the land.
But it’s an important premise of this that we are talking about laws that actually promote the general welfare. If we start talking about laws that are actually unjust or unfair in other kinds of ways, then things become very different. I’m not taking any position, for example, on when and whether civil disobedience is justified against certain kinds of laws.
Again to take an au courant [familiar] example, as you know, Germany has enacted a ban on circumcision. They have presented this as a law that promotes the general welfare. It seems to me that the medical basis for that is so obviously unsound that the law is fundamentally unjust, and I would think that Muslims and Jews would be quite morally justified in civil disobedience against that particular law, even though it presents itself as a law that promotes the general welfare. That’s arguable, but that’s how that particular kind of law seems to me.
And that problem can be quite general. The more unjust and unfair a society is, the less we are worried about exemptions from the law and the more we are worried about the laws themselves and what’s wrong with them.
JOANNE MYERS: I would like to thank Professor Leiter for taking the time for what was a fascinating discussion.
BRIAN LEITER: Thank you very much.