Why Tolerate Religion?, by Brian Leiter (Princeton, N.J.: Princeton University Press, 2012)
The title of this new book by Brian Leiter, Why Tolerate Religion?, is not accurate, but the argument in this book should matter deeply to Quakers. A more accurate title might be Why Should Governments Preferentially Tolerate Religion in Law and Public Policy Above Other Conscientious Commitments? The answer Leiter gives is that there are no good reasons to prefer religious conscientious commitments over others.
The American law currently provides special legal protections and solicitude for religion, and it includes religious exemptions from otherwise neutral laws of general applicability to all. Quakers have been central to bringing about such exemptions, in particular by gaining legal recognition of conscientious objection to participation in impressed military service. If governments cannot recognize and tolerate all conscience objections, how then do we justify government deference to Quaker conscience?
This is universalism with a modern face. Religion is not a unique form of public and social identity. Politics, class, ethnicity and cultural traditions play the same kind of powerful role for others that religion plays for Quakers. There are hundreds of millions of non-religious persons who have individual and personal identities based on beliefs and value commitments beyond reason.
In this thoughtful book, religion is identified by three elements:
- Action Demands (what religion requires of you as witness),
- Evidence Insulation (beliefs grounded on a different standard of evidence than in other areas of life) and
- Comfort (the source of consolation against the uncertainties of life).
The book addresses each of these elements, which have historically been given as reasons for special exemption for religious claims of conscience, as contrasted with non-religious claims. The author finds these elements all wanting as reasons for such a distinction.
The book is a mere 130 pages, more an extended essay. Even so, the analysis is as broad and finely crafted on this subject as we will find for a long time. It is important for Quakers, who value the recognition of the peace testimony.
Yet the author, a professor at the University of Chicago Law School, also pushes Quakers to address the needs of those persons with comparable non-religious conscientious positions. This is a matter of equity. If these non-religious objectors cannot be accommodated in American law in a satisfactory manner, the legal recognition of all religious conscience is threatened. The key question for Quaker universalists is: “What are the principled reasons that any government should single out religious conscience claims from obedience to its laws?”
The author’s argument has significant implications for the future of the deference that religious claims have received in American life and law. His book offers an index but includes no text reference to the United States v. Seeger or Welsh v. United States cases, to Quakers, or to other peace churches. There is a reference to these two cases in end note 5 to Chapter 1 (p. 138), as examples of expanding the meaning of “Religion” to include broader conscientiousness commitments, but they are mentioned without addressing the constitutional principle.
The book offers a set of fascinating end notes, which reflect the careful processing of this manuscript with colleagues and students and show the effort to include the stringent internal criticism for which the University of Chicago Law School is recognized. These end notes reflect a reopening of national discussion of the preferential treatment of religion in American law.
Leiter makes the strongest argument yet for the “no exemptions” solutions to respecting conscience on the basis of fairness to non-religious conscientious objections. If our government cannot be universally fair to all consciences, religious and non-religious, then we need not be fair to any consciences.
Quakers cannot expect protection of their consciences, if they are unable to identify a basis of protecting the consciences of others. This is a natural result of a growing awareness of the importance of the universalist theme in contemporary Quaker thought on the application of faith to practice.
This book is worth a careful read. Quakers need to craft a careful response that meets universal needs. This task is difficult and important.