(Photography by Jason Smith)

(Photography by Jason Smith)

The spirit of the law

Brian Leiter argues against legal exemptions for religious practices.

Religious people often receive protection in Western legal traditions from laws that infringe on their beliefs and practices. Sikh children, for example, have been granted exemptions from laws prohibiting weapons in schools so that they can wear a ceremonial dagger that represents a rite of passage.

Comparable claims without a religious basis—regardless of how longstanding a tradition or how deeply held as a matter of conscience—lack the same legal standing. In his book Why Tolerate Religion? (Princeton University Press, 2013), law professor Brian Leiter examines those differences through the lens of moral and political philosophy, arguing that sectarian convictions should not be singled out for such protections. “There’s no reason,” he says, “that nonreligious claims of conscience should be treated unequally with religious claims of conscience.”

The 1990 Supreme Court case Employment Division v. Smith echoed that position. But Justice Antonin Scalia’s majority opinion denying a Native American’s right to use peyote as a religious practice sparked controversy and congressional action in response, including the Religious Freedom Restoration Act of 1993. “There was a very strong negative reaction to [Employment Division v. Smith] because religious people in the United States in particular are used to getting special treatment,” Leiter says. “And guess what, they like it.” 

Leiter does not. In a January interview with the Magazine, adapted below, the Karl N. Llewellyn professor of jurisprudence and director of the Center for Law, Philosophy, and Human Values discussed his provocative point of view.

What distinguishes claims of religious conscience?

A conjunction of three features. First, like all claims of conscience, they involve certain categorical commands on people. All claims of conscience are like that, religious or otherwise. What makes them distinctively religious, I think, are the other two features: that all religions involve some beliefs that are accepted on faith and that all religions are concerned with what I call existential consolation—helping adherents deal with the basic facts about human existence, which are ultimately death, but suffering, loss, pain, en route to death.

What does it mean to “tolerate” religion?

I’m concerned particularly with what I call principled toleration. That is, people are putting up with what another group does that they disapprove of, not because they don’t think they could do anything about it, or they think it would be too costly to try to change the other group’s practices. Rather, they put up with what another group does that they disapprove of because they think it’s the morally right thing to do.

So, in a legal sense, why not tolerate religion?

My question is, is there a reason principled toleration would pick out only religious claims of conscience as deserving this kind of protection? The conclusion of my book is no, there’s no good argument for it. Religious conscience has the same entitlement to toleration as nonreligious conscience, but there doesn’t seem to be a good reason why it deserves more protection than other types of conscience.

Should everyone with conscientious objections be granted legal exemptions?

It would be tantamount to legalizing civil disobedience. It would also create overwhelming problems for the courts. I argue for the no-exemptions approach. In a just society, if laws are passed in order to promote the general welfare and you carve out objections and then impose burdens on your fellow citizens, there’s something fundamentally unfair about that. That kind of unfairness, I think, is lost in the public discourse about this. Why should my children have a higher risk of whooping cough because some crackpot has some bizarre view about vaccinations and claims a religious rationale for it?

How far does principled toleration go?

The harm principle was a notion introduced by John Stuart Mill. The basic idea was that people should be free to do what they want unless it harms other people. Even to people like Mill and other philosophers who think we ought to tolerate different ways of life and different beliefs and practices, there are limits of toleration.

Maybe the state has an obligation to tolerate a religious sect that teaches that all the other religious sects are destined for eternal damnation. They don’t have to tolerate that religious sect if it decides that the only way to save those people is to kill their infants because they’ll get a special dispensation and go to heaven. Nobody believes toleration extends that far.