New book questions preferential treatment of religious liberty
University of Chicago News Office
Brian Leiter, Why Tolerate Religion? Princeton University Press, 2012, 192 pp. ISBN: 9780691153612
The Western democratic practice of singling out religious liberty for special treatment under the law is not in sync with the world we live in today, argues University of Chicago Law School professor Brian Leiter in his new book,Why Tolerate Religion?
All people, both religious and non-religious, maintain core beliefs about what they feel they absolutely must do— a category Leiter calls “claims of conscience.” In the book, Leiter, the Karl N. Llewellyn Professor of Jurisprudence, explores whether there are good reasons for the tendency to grant legal exemptions to religious claims of conscience while largely rejecting non-religious claims.
“The current status quo is predicated on a fundamental inequality,” Leiter said. For example, he says a boy might be permitted to carry a dagger to school as part of his Sikh religion, but the same dagger would not be allowed if it were part of a family tradition.
“Namely, your claim of conscience counts if it is based in religion,” Leiter said. “My claim of conscience doesn’t count if it is not based in religion. That, it seems to me, is a pernicious and indefensible inequality in the existing legal regime.” Read more . . .
Andrew Koppelman has offered a challenge to Brian Leiter’s view that the proper public attitude toward religion is one of tolerance rather than active respect. Let us explore the nature of that challenge and offer a few observations on the topic.
Abstract: In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment and religion is not an apt candidate for respect in the “thick” sense of being an object of favorable appraisal. Special treatment would be appropriate only if there were some “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.” Favorable appraisal would be called for “[o]nly if there were a positive correlation between beliefs that were culpably without epistemic warrant and valuable outcomes. Both arguments depend on a radically impoverished and conception of what religion is and what it does. In this paper, I will explain what Leiter leaves out and offer a hypothesis about why. I will also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter’s analysis.
Abstract: Most Western constitutions, including the American, single out religious beliefs and practices for special kinds of legal solicitude and protection. In this essay, I want to ask a question about the moral foundations of such a legal practice. Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or on the moral attitude of tolerance of religion? My question will not be which of these moral ideals best explains the existing law of religious liberty in the United States, or elsewhere, though legal doctrine is a relevant data point for the inquiry. Instead, I want to ask which of these moral attitudes makes the most sense given what religion is. Of course, our legal practices offer some evidence about “what makes the most sense” because they are, quite obviously, not detached from our moral attitudes. But the law is but one data point among others, and if it were to turn out that aspects of existing legal doctrine in the United States should yield before the best account of the moral foundations of religious liberty that is a conclusion I am happy to endorse.