Book Review

Brian Leiter, Why Tolerate Religion?. Princeton NJ. Princeton University Press, 2012,
pp. 208. $24.95

It is a common feature of modern constitutions in Western legal systems that religion is

afforded legal protection for reasons frequently understood to be independent of those

justifying legal protection of speech, conscience, thought, association, and other activities

of significant moral value. The thought appears to be that the moral right to legal

protection of religion is fundamental in the sense that it does not derive from other more

basic rights; legal protection of religion is morally warranted simply in virtue of the

nature of religion. As it is fair to assume most legal systems aspire to legitimacy, the

rationale must be that there is some special feature or features that all and only religions

have that warrant, as a matter of political morality, legal protection of religious freedom.

This view should be distinguished from weaker views that see legal tolerance of

religion in a society as being justified wholly in virtue of contingent features of that

society. For example, one might argue that the Free Worship Clause of the US

Constitution is legitimate in virtue of certain historical and cultural circumstances of the

U.S circumstances that might not have obtained. In contrast, the idea that legal

tolerance of religion is a fundamental right implies that legal tolerance of religion is a

necessary moral requirement, and legal tolerance of religion is necessary in virtue of

being justified by necessary (or essential) features of religion.

It is this latter stronger thesis Brian Leiter rejects in his provocative new book.1

In particular, Leiters concern is to argue for the falsity of the following thesis:

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Hereinafter referred to as WTR.
 Principled Tolerance of Religion Thesis (PTR): There is something

about the nature of religion that necessarily warrants, as a matter of

political morality, special protections (i.e., legal tolerance).2

There are a number of important lines of argument against PTR but all ultimately

rest, as they must, on Leiters efforts to address a very difficult problem of conceptual

analysis namely, the problem of identifying those features that all and only religions

have that constitute them as religions. Whether PTR is true depends on what religion is

by nature. As we will see, however, it is very difficult to provide a clearly adequate

account of the nature of religion i.e., an account that identifies properties that are both

necessary and sufficient to constitute something as a religion or, as Leiter conceives the

project, one that captures a sufficient number of paradigms but avoids objectionable over-

or under-inclusiveness. It is too easy to give an analysis that is either over- or under-

inclusive because religion is a highly contested concept.

This review focuses on the difficulties associated with articulating the needed

conceptual foundation for a viable justification of PTR. I argue that the various

conceptual accounts of religion considered in WTR lack the resources to get PTR out of

the starting blocks. If there is an account of the nature of religion that will do a better job

of supporting PTR than Leiters, I am unaware of it.

The first step in assessing whether PTR is true is to determine whether there is

something distinctive about religion per se that, as a moral matter, warrants legal

protection:

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It is important to note that this review will not address the more fundamental, and very
difficult, issue concerning which particular acts fall within the boundaries of these special
legal protections.

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 In asking whether there is something special about religion that bears on

religious toleration, we are not asking whether there is some feature (or

features) of religious belief and practice that warrant principled toleration

of religion on either moral or epistemic grounds. There plainly are such

features, for example, that religious beliefs are often matters of

conscience. If there is a special reason to tolerate religion it has to be

because there arefeatures that all and only religious beliefs have, as a

matter of (conceptual or other) necessity (WTR 26-7).

There are thus two issues that need to be addressed. The first is to identify those

properties common to all and only religion that constitute something as a religion (or,

otherwise put, the conceptual nature of religion). The second is then to determine

whether those properties, either singly or jointly, have the kind of moral value that

requires, as a matter of morality, legal tolerance of religion.

Leiter identifies what he takes to be the three distinguishing features (or essential

properties) of religious belief that might be thought to explain why law must tolerate

religion qua religion. First, religions make categorical demands on action demands that

bind the subject to do what is demanded regardless of how compliance impacts the

prudential interests, preferences, and desires of the agent. As Leiter puts it, categorical

demands must be satisfied no matter what an individuals antecedent desires and no

matter what incentives or disincentives the world offers up (WTR 34). Second, a

religion contains certain views immune from the claims of reason or evidence in the

following sense: these claims are not held in virtue of satisfying ordinary standards of

epistemic justification. Third, religion provides existential consolation in the sense that

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it provides solutions to the problem of death, the problem of pain, and the problem of

explaining and sanctioning a communitys morality (WTR 51-2).

The claim that religion makes categorical demands of followers seems clearly

true. The doctrinal point of departure for each of Christianity, Islam, and Judaism is a

moral problem, namely, how to reconcile ourselves to God whom we have alienated

through sin. The scriptures of each of these religions state categorical norms defining

what we must do to succeed in addressing this fallen condition. For example, the

unconditional form of the Biblical command to love God with all ones heart, soul, and

mind is explicitly categorical and purports to bind each person regardless of her

subjective preferences, beliefs, desires, etc.

What is not clear is that only religions make such demands. On any ordinary pre-

theoretical understanding of morality, the demands of morality are categorical. Morality

is the kind of thing that characteristically requires sacrifice of prudential interests. This is

most obviously seen in negative moral norms, which prohibit the commission of certain

acts. The norm Do not kill innocent persons requires a prudential sacrifice of at least

this much: I must give up an option to kill innocent persons no matter what I might gain

from it.

The idea that morality and religion share the property of making categorical

demands a property that seems also essential to morality is not necessarily a problem

for PTR. It might be that it is the moral value of the essential properties of religion taken

together that morally warrants legal tolerance of religion, and that morality lacks one or

more of these essential properties. But, on closer inspection, morality seems to share, as

a conceptual matter, all the properties Leiter identifies as morally valuable properties

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essential to religion. In addition to containing categorical demands, morality also seems

to be subject to some degree of insulation from ordinary standards of epistemic

justification (hereinafter epistemic immunity). It is a commonly accepted epistemic

constraint on moral theory that the candidate theory must cohere with certain

foundational principles assumed to be part of a morality if a system of principles is to

count as a morality (hereinafter, the Methodological Constraint). One common line of

objection to the act-utilitarian principle, for example, is to identify counterexamples that

purport to refute this principle. According to act-utilitarianism, it would be morally

permissible to kill an innocent person if doing so would maximize community utility.

But this implication, the argument proceeds, warrants the rejection of the act-utilitarian

principle on the ground that it cannot be permissible to kill an innocent person even if it

maximizes utility. The principle immunizing innocent persons from being intentionally

killed appears to be foundational in the sense that (1) any plausible moral theory must be

consistent with the principle; and (2) the principle is assumed. Claims (1) and (2) seem

to imply that the principle in question enjoys epistemic immunity.

Leiter anticipates this line of counterargument, cautioning the reader that [w]hat

we say about [whether morality is insulated from reasons and evidence] depends

ultimately about what we take to be the relevant metaphysics and semantics of morality

(WTR 49). He observes, for example that a non-cognitivist anti-realist must claim that

morality is insulated from reason and evidence since moral claims do not express

propositional content. In contrast, he points out that a cognitivist realist is not committed

to such a claim in virtue of a semantic claim and an ontological claim. The semantic

claim is that moral judgments express propositional content with mind-independent truth

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conditions. The ontological claim is that, so to speak, the furniture of the world contains

moral facts (or something like this) which determine the truth-value of moral

judgments (WTR 50). These meta-ethical semantic and ontological claims enable

cognitive realists to hold that moral judgments are subject to ordinary standards of reason

and evidence.

Leiters warning is well taken but does not seem to apply to the concern that

moral theorizing seems to enjoy qualified epistemic immunity. If cognitivist realism is

true, it tells us only that there are moral facts and that these moral facts render judgments

true; it does not tell us how to identify these facts or how to determine whether a

particular moral claim is true. Cognitivist realism might well imply that the only way to

be epistemically justified in adopting a particular moral judgment is to show that it can be

derived (in some relevant sense) from a moral fact. But it says nothing that would imply

a story about how to identify moral facts or even that moral facts are identifiable, let

alone identifiable using ordinary standards of reason and evidence. There is nothing in

cognitivist realism that would tell us anything about whether substantive moral theorizing

enjoys any significant epistemic immunity.

But perhaps we can look to the practices of moral objectivists and realists who

are concerned with applied issues in ethics or political morality. Such theorists tend to

adopt the Methodological Constraint, and all adopt implicitly, if not explicitly the

following principle as foundational and epistemically immune to ordinary standards of

reason and evidence: harm is presumptively or prima facie wrong. It is hard to see how

any system of beliefs inconsistent with this principle could count be plausibly

characterized as a system of morality.

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 For what it is worth, it is not uncommon to see moral objectivists and realists

assume even less abstract judgments as foundational. Philosophers of religion commonly

reject the divine command theory (DCT) that God manufactures objective morality

through his commands on the ground that it is inconsistent with certain foundational

truths of morality. Schematically put, the reasoning which now has the status of the

standard objection to DCT is as follows:

1. If DCT is true, then anything that God commands us to do is morally right.

2. Therefore, if DCT is true, then it would be morally right to torture every

first-born infant if God commanded it.

3. It would not (because it could not) be morally right to torture every first-

born infant if God commanded it.

4. Therefore, DCT is false.

The idea here is that there are some putative principles of morality that could not be false

and hence that not even God could bring about the falsity of such principles. But the

truth of these principles has to be assumed, largely on the ground that they seem obvious.

Hence it is far from clear that they do not enjoy the kind of epistemic immunity Leiter

attributes to religion.

Leiter, acutely aware of these similarities between morality and religion, believes

that morality lacks a third distinguishing property that might contribute to an explanation

of why religion morally warrants special legal tolerance namely that it provides

existential consolation (WTR 52). There is something about this that seems clearly

correct; we frequently hear religion described by religious folk as a source of comfort

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during times of extreme difficulty. But there are three problems with the view that this

marks a distinguishing feature of religion.

First, it assumes that any body of doctrine properly characterized as a religion

must solve certain problems (e.g., of death and suffering) in a way that affords comfort to

believers. There is much more that would have to be said to make this function of

religion clear and rigorous enough to do the work the proponent of PTR wants it to do.

One concern is that a particular religion might tell a story that explains death, suffering,

and morality but in no way provide existential consolation in the form of comfort. One

source of great comfort to many religious folk is the thought that there is eternal life after

death, which is contrived to alleviate not only a persons fear of her own death but also

her pain over those who have died. But there is no reason to think it is a necessary

condition for something to count as a religion that it contains a doctrine allowing for the

prospect of an eternally blissful afterlife. It seems reasonable to think that something

could count as a religion that (1) claims that a perfect God exists; (2) requires highly

demanding sacrifices of ones own interests; and (3) offers no afterlife. Obviously, there

will be many more beliefs ascribable to most religious persons and some of these might

provide the relevant kind of comfort. But whatever comfort these other doctrines might

provide seems insignificant when one considers that the inclusion of (3) leaves

uncomforted our profound fears about our mortality and that of loved ones.

Second, one could accept a religion that provides the right kind of comforting

doctrines but also have beliefs about oneself that negate the comfort that one might

otherwise get from these doctrines. For example, someone could accept the doctrine of

pre-election but believe that she is not among the elect. Or someone could believe that

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Christian faith requires sacrifices that she lacks the will and ability to make. One

plausible interpretation of the Christian law to love your neighbors as you love yourself

would require one to donate all discretionary material resources to those in life-

threatening poverty. There are few people who could succeed in meeting a standard that

requires giving away all or most discretionary wealth to help others in need.

Third, the existential consolation feature of religion claims to solve certain

problems namely, the problems of death and pain that other systems of belief do

not solve. But biology provides a lot of answers to important why questions regarding

pain and death. We die and suffer because our bodies do things. If the existential

consolation function of religion is to do the work it is being deployed to do, much more

would have to be said by way of explaining the content of the relevant problems that

religions solve in existentially consoling ways. In particular, the proponent of the idea

that religion solves problems other belief-systems cannot must explain why the answers

biology provides to the why questions of pain and death fall short of being acceptable.

All this might seem to create serious difficulties for Leiter. But the appearance

would be somewhat misleading. In his book, Leiter is not attempting to justify the claim

that religion morally warrants special legal protection in virtue of its nature; on the

contrary, he is attempting to refute it. As a result, Leiter need not show that religion can,

in the end, be conceptually distinguished from these other beliefs. Quite the contrary. it is

the PTR proponent who needs to mark the conceptual distinction in order to demonstrate

its truth. If no such distinction can be cut, then that is a good reason to think Leiter has

succeeded in undermining PTR. There is, of course, no reason to think that morality and

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religion cannot share some essential properties. But if they do not differ on those

essential properties that confer moral worth on beliefs within the system, then there is no

argument that would justify special legal protection of religion in virtue of a nature that is

unique to it. If so, then whatever legal protection religion should receive is morally

warranted by more general principles protecting freedom of conscience, which is, of

course, is what Leiter ultimately wants to claim.

Despite the fact that Leiter rejects PTRs claim that there is something special

about religion warranting legal tolerance, he accepts that religion necessarily warrants

legal tolerance. Religion necessarily warrants legal tolerance, on his view, not because of

something distinctive and unique about religion, but because religious beliefs are matters

of conscience and matters of conscience necessarily warrant legal tolerance. The claim

that matters of conscience necessarily warrant legal tolerance is not, however, as

plausible as might initially appear. There might be good arguments against German laws

that criminalize public advocacy of Nazi doctrines; it is not implausible, for example, to

think that a ban of this kind would be an illegitimate restriction on the general right to

free speech. But it should be clear that an argument is needed to show this and that any

proponent of such an argument will be faced with the difficulty of explaining why, given

its tragic history, Germany may not legitimately prohibit such advocacy to prevent a

second Holocaust. All this causes problems for the idea that matters of conscience

necessarily warrant legal tolerance because whatever it is about Nazi doctrine that might

seem to legitimize the German legal prohibitions might also legitimize prohibiting public

advocacy of religious views under the right circumstances. For instance, under the right

circumstances, the required recitation of the Christian Creed during a liturgical service

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might well count as public advocacy and hence be no less susceptible to restriction than

would German neo-Nazis chanting Nazi slogans on privately owned land.

The point here is that the claim that religion necessarily warrants legal tolerance

is not obvious, no matter what grounds are offered. This strong claim asserts that under

no possible circumstances is it ever justifiable for a state to deny tolerance to a body of

doctrine that addresses matters of conscience regardless of (1) the content of the

doctrines in question, (2) the state of the particular society at the relevant point in time,

and (3) the psychological and behavioral dispositions of people who happen to inhabit

that society. Once fully understood, that remarkably strong claim should seem

counterintuitive as counterintuitive as PTR should seem after considering Leiters

arguments if, for no other reason, than the conceptual possibility of a religion with

extremely wicked content and adherents.

This suggests that the issue of whether a religion morally warrants legal tolerance

is a contingent matter depending on various empirical features of our world. These

features have to do with the specific content and practices of the religion and the

psychological features of people who accept the religion. For example, Christian

fundamentalists interpret the command to go and make disciples of all nations as

providing moral license to enact and enforce laws prohibiting abortion, gay marriage, and

assisted suicide wholly on the ground that their religion prohibits these acts. This

activism is incompatible with the idea that we have a right not to have our freedoms

coercively restricted by laws that are justified wholly on religious grounds.

The legal disabilities imposed by the US Establishment Clause seem clearly

justified by these concerns having to do with contingent features of fundamentalist

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doctrine and certain psychological features of those who accept those doctrines. As the

relevant features are contingent, there is nothing in the argument I sketch above that

would apply to all possible legal systems. Whether protections like those afforded by the

Establishment Clause are justified is a contingent matter.

Likewise, whatever protections are afforded by the Free Worship Clause can

putatively be justified in terms of contingent features. Arguably, the special protections

of the Free Worship Clause are justified as a balance to the special disabilities imposed

by the Establishment Clause. It is not just that the Establishment Clause is justified by

contingent features of the world having to do with Christian doctrine and the psychology

of people who practice Christianity. It is also that, as a contingent matter, atheists tend to

want legal protections against religion that sometimes would infringe legitimate interests

of believers. Atheists are sometimes as politically intrusive as fundamentalists.

Either way, Leiter correctly rejects what many seem to regard as self-evident. My

brief arguments in this review do little to call into question Leiters careful and sustained

arguments against PTR. Even after the nits are picked, Leiters case remains formidable:

no matter how you cut the conceptual landscape, PTR seems clearly false. Showing that

is no minor achievement in normative political theory. Moreover, Leiters arguments

make an important contribution to the academic literature yet remain accessible to a

general audience. This is a book that can, and should, be read by philosophers and

laypersons alike.

University of Washington School of Law, Ken Himma

William H. Gates Hall
BOX 353020
Seattle, WA 98195, USA

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E-mail: himma@uw.edu

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