Freedom of Conscience: To What Extent?
[Why Tolerate Religion? • By Brian Leiter • Princeton University Press, 2012 • xv + 192 pages]
In this very thoughtful book, Brian Leiter calls our attention to a paradox. In most liberal democracies, including the United States, religious believers often are exempt from laws that violate the tenets of their religion. By contrast, parallel claims of exemption on non-religious grounds tend to receive less consideration.
Leiter offers an apt example. In a Canadian case, a Sikh student was allowed to wear a ceremonial dagger, mandated by his religion; but a secular student who claimed that wearing a dagger was an integral part of his lifestyle would almost certainly not receive the same consideration. “The conscientious obligation a devout Sikh has to wear a kirpan [ceremonial dagger] is thought to be too serious---too important for the integrity and identity of this religious believer---to require him to forgo it because of the general prohibition on what anyone else would see as a weapon and a danger to school safety. But now suppose that our fourteen-year old boy is not a Sikh but a boy from a rural family whose life ‘on the land’ goes back many generations. . . . A boy’s identity as a man in his community turns on his always carrying the family knife. . .There is no Western democracy, at present, in which the boy in our second scenario has prevailed or would prevail in a challenge to a general prohibition on the carrying of weapons in the school.”(pp.2-3)
Why is this disparity in treatment a paradox? The problem arises for Leiter in large part because he views religion in a certain way. To him, religious beliefs fly in the face of reason and evidence: to accept conventional religion is irrational. He says, e.g., “Ancient testimonial evidence in favor of events that are inconsistent with all other scientific knowledge about how the world works is nowhere thought to constitute evidence for belief in a particular proposition, and that is exactly the status of the putative evidence in support of the resurrection of Christ.” (p.41) More generally, he says that “I am going to assume---uncontroversially among most philosophers but controversially among reformed epistemologists---that ‘reformed epistemology’ is nothing more than an effort to insulate religious faith from ordinary standards of reason and evidence. . .and thus religious belief is a culpable form of unwarranted belief given these ordinary epistemic standards.” (p.81, emphasis in original) Here then is the paradox. If religious belief is irrational, why should it be given special privileges? Why should those who hold irrational beliefs be treated with indulgence not accorded to others?
Those familiar with Leiter’s frequent battles on his influential website with the “Texas Taliban” may anticipate an all-out assault on the special position of religion, but Leiter has a surprise in store. Following Nietzsche, his favorite philosopher, he holds that false beliefs can be necessary for life: the falsity of religious beliefs does not for Leiter settle the issue of the public status of religion. “I have adopted throughout what seems to me the clearly correct Nietzschean posture---namely that the falsity of beliefs and/or their lack of epistemic warrant are not necessarily objections to those beliefs; indeed, false or unwarranted beliefs are almost certainly, as Nietzsche so often says, necessary conditions of life itself, and so of considerable value, and certainly enough value to warrant toleration.” (p.91, emphasis in original) Those who favor active measures to diminish the influence of religion in public life might appeal to the bad consequences of belief: what of all those massacred in the name of religion? Leiter in response says, “there is no reason to think that beliefs unhinged from reason and evidence and that issue in categorical demands on action are especially likely to issue in ‘harm’ to others.”(p.83)
If Leiter does not favor the public crusade against religion one might have anticipated from him, he by no means supports granting religion a special place in the law. He argues, on both deontological and consequentialist grounds, that people’s beliefs and practices should be tolerated. People are normally entitled to freedom of conscience. “The strictly moral arguments for toleration claim either that there is a right to hold the beliefs and engage in the practices of which toleration is required; or that toleration of those beliefs and practices is essential to the realization of morally important goods. The moral arguments divide, predictably enough, into Kantian and utilitarian forms.”(p.15)The right to act in accord with one’s conscience is however not absolute: someone could not, e.g., justifiably use the teachings of his religion to demand that the practice of child sacrifice be allowed. Leiter calls these limits “side- constraints.”
Leiter thus subsumes religious exemptions within the more general category of freedom of conscience. In his view, religion should not be singled out for special treatment; and religion should be “tolerated” rather than accorded “the affirmative kind of appraisal respect”, which goes beyond toleration. Though people’s right to believe merits what he calls “recognition respect,” the contents of religious beliefs, owing to their anti-rational character, do not deserve “appraisal respect.”
Libertarians will applaud Leiter’s excellent arguments for freedom of conscience, but he does not take them as far as we would wish. He thinks that all states must operate from a “Vision of the Good”, “a vision, broadly speaking, of what is true or important” (p.118): and that the state may act to promote its Vision, even though doing this puts it at odds with the beliefs of various groups within it. The Rawlsian notion of neutrality among these Visions is chimerical. “Rawlsian political liberals think a state can actually abstain from promoting a Vision of the Good that isn’t generally accepted. . . though it seems to me that they typically just denominate as ‘unreasonable’ anyone who has a Vision of the Good incompatible with the Rawlsian vision of a ‘political’ conception of liberalism..” (p.122, note 38)
Given the necessity for such a Vision, the state can, e.g., exclude creationist teaching from public schools. ”The state may endorse a Vision of the Good according to which religious explanations for the origin of human life are mythologies that have no place in the public schools, but what they [the state?] may not do is prevent the creationists and intelligent design proponents from articulating those views in private and in public (if not in the state schools.)”(p.121) Parents with creationist views would not be entitled to have their children taught in public schools in a way consonant with their beliefs. Of course, if there are no public schools, this problem does not arise.
More generally, Leiter is wary of attempts to extend claims of conscientious objections to laws. “Given the lack of any good moral reason for treating the nonreligious unequally with regard to claims of conscience, one obvious solution would be to extend the breadth of exemptions from generally applicable laws to all claims of conscience, religious or not. . .it seems unlikely that any legal system will embrace this capacious approach to liberty of conscience that would involve according all these claims of conscience equal legal standing.”(p.91)
Leiter seems to me right that states, particularly those that maintain a system of public education, must operate from a particular Vision of the Good; and if they do so, they will operate in a way that dissident groups within them deplore. But to libertarians, this is a reason not to establish a state of this sort in the first place. If a state will almost inevitably pass laws that violate the consciences of some of its citizens, is this not a significant argument against it? Leiter asks, “what legal system will say ’this is the law, but, of course, you have the right to disregard it on grounds of conscience’? This would appear to amount to a legalization of anarchy!”(p.91) Libertarians will answer, ‘Yes, precisely!” 
 This is not the place to discuss the status of religious beliefs. But it does not follow from the undeniable fact that most Anglophone philosophers are not religious that they share Leiter’s view that those who do believe are irrationally insulating their faith from evidence. Leiter might respond that he does not contend that this does follow from these philosophers’ atheism, but that it is nonetheless true that they believe this. I am very much inclined to doubt it.
 In his definition of religion, Leiter places great stress on the categorical character of religious demands, but I am inclined to think he wrongly conflates two different concepts. He says, “To be sure, there are theoretical understandings of morality—Immanuel Kant’s most famously, though not only his—according to which the demands of morality are indeed categorical. What is interesting and important about religion is that it is one of the few systems of beliefs that give effect to this categoricity.” (p.38). What Leiter has here in mind, if I have rightly understood him, is that religious believers take divine commands to be of overriding importance: they will endeavor to obey these commands, even when doing so requires great sacrifice. But that is a different matter from what Kant meant by a categorical imperative: this is an imperative that makes a direct demand on us, not dependent on whether fulfilling that demand furthers some interest. A categorical requirement in this sense need not be overriding, although Kant to be sure thought that his imperatives were overriding; and I doubt that Leiter would wish to exclude religious believers who obeyed divine commands in the hope of getting to heaven from those he has in mind when speaking of the “categoricity” of religious demands.
 The phrase of course comes from Nozick but Leiter does not use it in quite the same way as he did. For Nozick a side constraint limits the pursuit of a goal; it is not a limit on the extent of rights.
 The best discussion of how freedom of conscience, rightly understood, drastically restricts the state, or does away with it altogether is Chandran Kukathas, The Liberal Archipelago (Oxford, 2003)