by Brian Leiter. Princeton, New Jersey: Princeton University Press, 2013. 187pp. Cloth $24.95. ISBN: 9780691153612.
Reviewed by Kevin R. den Dulk, Department of Political Science, Calvin College. Email: kdendulk [at] calvin.edu.
The title of Brian Leiter’s Why Tolerate Religion? conveys at least three meanings. The first speaks to Leiter’s primary intention, which might be summarized by asking a more specific and substantive question: Are there compelling moral reasons for governments to tolerate religion differently than any other claim of conscience? His central claim in the book is that no such reasons exist. The second meaning is closely related to the first: Are there compelling reasons for governments to provide exemptions from generally applicable laws for any claim of conscience, religious or otherwise? Leiter argues that governments owe no such exemptions. But it is likely some readers will come away from the book detecting yet another implied meaning to the title. In his relentlessly empiricist assumptions about religious faith, not to mention his numerous acerbic asides about some religionists, Leiter can appear to be asking a rhetorical question: Why put up with religious claims at all – not religion relative to other claims of conscience, but religion itself?
These are all provocative questions, of course, and Leiter’s answers can be polarizing. Some will see principle and fairness in his perspective; others will see intellectual hostility and ominous signs of state suppression. The differences will depend on readers’ elemental assumptions about the nature of both the state and religion. For my part, I came away with a mixed view: While Leiter breezes past too many of his own assumptions in this short book filled with bracing ideas, the clarity and energy of his position will surely help sharpen the lines of the debate about state toleration of religion.
Leiter begins his answer to his primary question by exploring the “general structure” of principled arguments for state toleration of non-conformist ideas and actions (including beliefs and actions that are not “religious”). He insists that a principled form of toleration must be justified on moral and/or epistemic grounds, and he invokes what he takes to be the most important philosophical options: Kantian (the early Rawls is “paradigmatic”) and utilitarian forms of moral arguments, as well as a Millian form of epistemic argument (i.e., toleration is justified when “it contributes to knowledge of the truth”). Leiter moves briskly here, laying out these positions in Chapter 1 in less than twenty pages (pp.7-25). In fact, he describes more than he argues in this section; one senses that he is asking readers simply to stipulate that these options “capture the main principled positions” (p.15). [*220]
This raises the question of audience straightaway: Leiter hoped that by highlighting these two prominent traditions of moral thought (and not taking sides) his argument would have a “broader resonance” (p.x), but his stipulations will undoubtedly put off those readers who are not compelled by Kantian and utilitarian assumptions, including a wide range of scholars who reject these traditions on principled grounds rooted in religious presuppositions. As Leiter presses on, we find that he simply flatly rejects such presuppositions as failing modern tests of “evidence and common sense,” to use his oft-repeated phrase. His key example, which comes later in the book, is John Finnis’s theory of natural law, which Leiter dispatches in a few pages that illustrate the stark lines of disagreement about what counts as a “rational.” More on that later, but I simply note here that I was left wondering how his overall argument would have unfolded if Leiter attempted to appropriate rather than reject the new natural law perspective as one of the “main principled positions.”
In Chapter 2 (as well as portions of Chapter 4), Leiter moves on to a direct response to his animating question: If we grant the moral and epistemic grounds for principled toleration, is religion distinctive in some way that would justify special treatment by the state? To answer the question, Leiter walks into the thicket of defining religion, or at least he attempts to identify certain characteristics that are both distinctively “religious” and pertinent to his argument about state toleration. He concludes that three characteristics are most germane: (1) religious adherents experience “categorical demands on action” (p.34); (2) religious beliefs are “insulated from ... evidence and rational justification” (p.34); and (3) religion provides “existential consolation,” that is, it helps “render intelligible and tolerable the basic existential facts about human life, such as suffering and death” (p.52). Leiter rightly recognizes that any of these criteria taken alone can be under- or over-inclusive of religion, which he amply illustrates (e.g., Marxists may act on categorical demands; therapy might provide existential consolation). But he contends that it is really the combination of these factors that helps us move toward a serviceable view of religion.
One must admire Leiter’s willingness to dive into these fraught waters, and he does so deftly and with much philosophical erudition. Yet ultimately I found the discussion of religion unsatisfying. Consider his treatment of the second criterion, that is, that religious beliefs are not amenable to – indeed, are insulated from – “evidence or common sense.” Leiter cites some of the “large literature in Anglophone philosophy devoted to defending the rationality of religious belief” (p.80), but his unfortunate strategy is to dismiss those defenses by either poisoning the well or appealing to a perceived consensus. “Suffice it to observe,” he says [my emphasis], that “proponents [of religion’s rationality] are uniformly religious believers” (p.80), and that the “dominant” position held “uncontroversially among most philosophers” is that the work of even the best of these proponents – he cites Reformed epistemologists Alvin Plantinga and William Alston – is “nothing more than an effort to insulate religious faith from ordinary standards of reasons and evidence” (p.81). I [*221] certainly cut Leiter some slack for avoiding a full-blown discussion of complex epistemological issues. But it is not remotely “sufficient,” by his own standards of reasons and/or evidence, to make such passing dismissals, particularly when the scholars he cites are indeed eminent philosophers who have been honored repeatedly within the mainstream of their discipline for their analytical precision and innovative thinking about the complementarity of faith and science.
But what is more puzzling about Leiter’s treatment of religion qua religion is what he leaves out of the discussion. For Leiter, the relevant aspects of religion appear to be largely interior to the individual, a matter of how the abstract faith commitments of a religionist translate into moral compulsions or solace in the face of death. One gets little sense that religion is a fundamentally social activity, that is, that people across religious traditions organize themselves collectively through institutions as a way to act in the world.
As best I can tell, Leiter does not seriously consider these institutional or social aspects as part of a definition of religion because they do not easily fit with the stipulations of Chapter 1, which assume the obligation of the state to tolerate is related to the moral status of an individual agent. He hints at the point in his brief reflections on Durkheim, where he declares that identifying religion as set of “sacred” beliefs and practices that find expression in a “moral community” (e.g., a church) “has significant virtues for social-scientific purposes, but somewhat less so for ours” (p.29). He blows past this dimension of religion as largely sociological and therefore beside the philosophical point. But this begs the question of why sociality has no bearing on the moral status of a religious adherent. One could argue that the interpersonal experience of membership in a house of worship places fundamentally different moral obligations and structures of accountability on an adherent than, say, belonging to a bowling league or a labor union or even a movement inspired by veganism (he uses the latter example on p.96). Perhaps Leiter would respond that the differences are not all that pronounced, or that even if they are they still ought not matter from a moral or epistemic perspective. My only point is that he does not consider the question in a serious way.
This brings me to Leiter’s conclusions about state toleration, particularly in Chapters 3 and 5. (Chapter 4 is an interesting yet somewhat digressive examination of the grounds for state respect, rather than toleration, of religion.) His argument in Chapter 3 is that a principled toleration (on the moral and epistemic bases he asserts) does not support singling out religion for special status relative to any other claim of conscience. A deontological perspective, almost by definition, does not play favorites with claims to conscience (we are ignorant, after all, even about our religious commitment in Rawls’s “original position”), and utilitarians are less worried about the nature of a claim than its effects. His argument in Chapter 5 is that a principled toleration does not require the state to carve out exemptions for a claim of conscience (religious or otherwise) when a law has “neutral objectives,” i.e., the law is generally applicable and not [*222] targeted at the conscience-claim itself. The one exception is a claim of conscience that violates something like Mill’s Harm Principle. What’s more, he argues that a strict disestablishment of religion, particularly in schools (and extending to after-hours “equal access” by religious groups), is entirely consistent with principled toleration. To say that the state ought not target religionists in their private expression does not entail state accommodation of religion in the public sphere. For Leiter, every state has a “Vision of the Good” that need not cede ground to competing visions, religious or otherwise.
These chapters are packed with challenging arguments that are well worth exploring. Political scientists and legal scholars might read Leiter’s conclusion in Chapter 5 as a philosophical justification for the U.S. Supreme Court’s decision in the unemployment compensation/religious freedom case Employment Division v. Smith (1990), although I suspect the connection to opinion author Antonin Scalia will make Leiter cringe, given the obvious ideological divergence between these men (perhaps this also explains why the case only merits a footnote, on p.162). Comparativists might also appreciate Leiter’s approach in Chapter 5, which benefits from cross-national perspective, particularly in his reflections on the French practice of laïcité.
But, again, readers who do not accept his starting point will not be satisfied with where he ends. Claims of conscience are boxed in by the Kantian and utilitarian stipulations, which seems to lead Leiter ineluctably to the conclusion that any deeply held claim that butts against the state’s “Vision of the Good” is tolerable only when it stays safely within the private sphere.
Employment Division v. Smith 494 U.S. 872 (1990).
Copyright by the Author, Kevin R. den Dulk.