Preface and Acknowledgments
1. The later Rawls also thinks that a “liberal” state cannot respect its citizens if it does not justify itself in terms that all “reasonable” citizens with differing comprehensive views can nonetheless accept. Since there are no views acceptable to all “reasonable” citizens—unless one denominates as unreasonable anyone who isn’t a political liberal in basically the Rawlsian mode—it would seem that the kind of “respect” Rawls imagines isn’t a live option in the real world.
Chapter I Toleration
1. U.S. C. amend. I. Before Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872 (1990), courts, in assessing claims for exemptions under the Free Exercise Clause, at least nominally applied strict scrutiny to laws that burdened a sincere religious practice. See Sherbert v. Verner, 374 U.S. 398, 406 (1963); Michael W. McConnell, “Free Exercise Revisionism and the Smith Decision,” University of Chicago Law Review 57 (1990): 1110. That is, courts would only uphold a law that burdened such a religious belief or practice when the law served a “compelling” governmental purpose and used the least burdensome means possible in furthering that purpose. McConnell, “Free Exercise,” 1110. The U.S. Supreme Court’s Smith decision dispensed with strict scrutiny review for Free Exercise Clause claims; the Free Exercise Clause, the Supreme Court wrote, does not exempt an individual from a “valid and neutral law of general applicability” simply because the law conflicts with that individual’s religion. Smith, 494 U.S., 880.
Congress reacted to the Smith ruling by passing the Religious Freedom Restoration Act of 1993 (RFRA), which reinstated strict scrutiny review of laws burdening religion. 42 U.S.C. § 2000bb. In City of Boerne v. Flores, 521 U.S. 507 (1997), the U.S. Supreme Court held that Congress exceeded the scope of its powers under § 5 of the Fourteenth Amendment in passing the RFRA, and that the act was thus unconstitutional, at least as applied to state and local governments. See Cutter v. Wilkinson, 544 U.S. 709, 733 n. 2 (2005) (noting that, while a number of circuit courts had found the RFRA constitutional with respect to the federal government, the Court had not yet addressed the issue). Congress then passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, which reinstated strict scrutiny for government regulation with respect to land use and institutions (such as prisons) which burdened religion. 42 U.S.C. § 2000cc. RLUIPA limited its scope to programs receiving federal assistance, regulations affecting interstate commerce, and individualized government assessments of proposed land uses. § 2000cc(a)(2). The Court upheld RLUIPA’s constitutionality with respect to the Establishment Clause in Cutter, but did not address whether Congress exceeded the scope of its powers under § 5 of the Fourteenth Amendment in passing RLUIPA, as it did with the RFRA. See 544 U.S. 709.
Many state legislatures, in response to the invalidation of the federal RFRA with respect to state and local entities in Flores, enacted state-level Religious Freedom Restoration Acts. Christopher C. Lund, “Religious Liberty after Gonzales: A Look at State RFRAs,” South Dakota Law Review 55 (2010): 477 (“Sixteen states have now passed RFRAs”); see, e.g., the Illinois Religious Freedom Restoration Act, 1998 Ill. Legis. Serv. 90-806 (West), codified at 775 Ill. Comp. Stat. 35/1–99 (2010) (instituting the strict scrutiny, or “compelling government interest” test).
As an aside, it might be worth noting that, after Smith, Congress also passed the American Indian Religious Freedom Act Amendment of 1994, which legalized the religious use of peyote by Native Americans—precisely the practice that gave rise to the Smith suit in the first place. Pub. L. No. 103-344, 108 Stat. 3125 (1994) (codified at 42 U.S.C. § 1996a [2010]). As my research assistant John Wasserman, University of Chicago Law School class of 2012, quite aptly put it, “Congress apparently had a scorched-earth attitude toward Smith.”
2. Grundgesetz für die Bundesrepublik Deutschland [Constitution] art. 4(1)–(2) (F.R.G.)
3. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch. 11 (U.K.), § 2.
4. Article 18 of the Universal Declaration of Human Rights, G.A. Res. 217A, 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948).
5. Some U.S. Supreme Court cases, involving constitutional challenges to the Universal Military Training and Service Act, have moved in the direction (at least for “conscientious objectors” to military service) of expanding the meaning of “religion” to encompass broader commitments of conscience. See esp. United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 [1970]. Even these cases, however, were framed as a matter of statutory interpretation, not constitutional principle. As José Louis Martí points out to me, Spanish courts have reached similar conclusions about conscientious objection to military service. In a related vein, the European Commission on Human Rights, in Arrowsmith v. United Kingdom, 3 E.H.R.R. 218 (1978), considered the question whether Article 9 of the European Convention, and its protection for liberty of conscience and religion, prohibits punishing a nonreligious pacifist for distributing literature to British soldiers encouraging them not to fight in Northern Ireland. The commission held that while “pacifism as a philosophy … falls within the ambit of the right to freedom of thought and conscience” (228), it found that the literature in question did not, in fact, endorse pacifism, and so the conviction for distributing it did not violate Article 9 (230).
6. Douglas Laycock, “Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause,” Notre Dame Law Review 81 (June 2006): 1839, notes that “the great majority of conscientious objectors … are traditionally religious.” A substantial majority of conscientious objector cases that have appeared before the European Court of Human Rights also involve religious objectors, as opposed to those who object for secular or pacifistic reasons. See the collection of cases listed at http://www.strasbourgconsortium.org/cases.php?page_id=10#portal.case.table.php?topic=57.
My research assistant, John Wasserman, reviewed hundreds of U.S. cases brought by atheists or agnostics, and none involved challenges to “valid and neutral laws of general applicability,” as Justice Antonin Scalia wrote for the majority in Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872, 880 (1990). Both before and since Smith, atheist or agnostic plaintiffs have argued that a state action violated the Free Exercise Clause in conjunction with the Establishment Clause or with some statute preventing preference of one sect over others (or over none). See, e.g., Friedman v. Bd. of County Comm’rs of Bernalillo Cty., 781 F.2d 777 (10th Cir. 1985) (plaintiff, an atheist, argued that a county seal that featured a cross and the saying “With This We Conquer” violated the Free Exercise and Establishment Clauses). That is, atheist and agnostic plaintiffs’ Free Exercise claims have not asserted that laws intended as a general reflection of religion-neutral policy somehow impinge upon their religious (or perhaps more appropriately, nonreligious) practice; rather, they involve the claim that laws are in fact not intended generally at all, but are instead laws that favor religion or particular religions over atheism or agnosticism. See, e.g., Nicholson v. Bd. of Comm’rs of the Ala. Bar Ass’n, 338 F. Supp. 48 (D.C. Ala. 1972) (in which the plaintiff, an atheist lawyer, challenged the state bar association’s requirement that new lawyers swear an oath invoking God’s name). There are, at best, only a handful of cases in which nonreligious plaintiffs were, arguably, making a claim of conscience for exemption from a generally applicable rule. So, for example, Wells v. City and County of Denver, 257 F.3d 1132 (10th Cir. 2001) involved a challenge by an atheist group that wanted to display a winter solstice sign in spite of a ban on private, unattended displays in a particular area. The local government had erected a holiday display featuring imagery from multiple religions; arguably, the free exercise claims put forth by the plaintiffs could be framed as a claim that the private sign ban in that spot infringed upon their free exercise rights. More plausibly, however, the group was challenging the religious neutrality of the display, which featured Judeo-Christian imagery—that is, the case was an Establishment Clause claim, with a Free Exercise Clause claim merely tacked on. Accordingly, the court dispensed with the Free Exercise claim in a brief paragraph, referring to the claim as “somewhat elusive.” Wells v. City and County of Denver, 1152.
In sum, while it is arguable in a few cases that atheists or agnostics brought challenges to neutral, generally applicable laws for burdening their “religious practice,” it appears as if there is no clear instance of an atheist or agnostic challenging “valid and neutral laws of general applicability.” Overwhelmingly, if not universally, Establishment or Free Exercise Clause challenges to statutes or government actions by atheists or agnostics involve claims of underlying religious motives rather than claims of general motives that nonetheless unconstitutionally burden atheism or agnosticism. See, e.g., Freedom From Religion Foundation v. Hanover School Dist., 2010 WL 4540588 (1st Cir., Nov. 12, 2010) (challenging the words “under God” in the Pledge of Allegiance).
7. See, e.g., Douglas Laycock on the American constitutional experience: “[I]n history that was recent to the American Founders, governmental attempts to suppress disapproved religious views had caused vast human suffering in Europe and in England and similar suffering on a smaller scale in the colonies that became the United States.” Douglas Laycock, “Religious Liberty as Liberty,” Journal of Contemporary Legal Issues 7 (1996): 317.
8. Bernard Williams, “Toleration: An Impossible Virtue?” in Toleration: An Elusive Virtue, ed. David Heyd (Princeton, N.J.: Princeton University Press, 1996), 19.
9. Jeremy Waldron, “Locke: Toleration and the Rationality of Persecution,” in Justifying Toleration: Conceptual and Historical Perspectives, ed. Susan Mendus (Cambridge: Cambridge University Press, 1988), 61–86. Waldron’s reading is not uncontroversial; see, e.g., Alex Tuckness, “Locke’s Main Argument for Toleration,” in Toleration and Its Limits, Nomos 48, ed. Jeremy Waldron and Melissa S. Williams (New York: New York University Press, 2008), pp. 114-138.
10. Locke puts a distinctively Protestant “spin” on this epistemological point, since he believes that salvation can only come through a free (i.e., uncoerced) embrace of religious doctrine. On that Protestant view, there would be no point in nontoleration, since it would not accomplish any meaningful religious objective given the prerequisites for salvation.
11. Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982). For similar considerations, see also John Stuart Mill, On Liberty, ed. Elizabeth Rapaport (Indianapolis: Hackett, 1978), chap. 4.
12. Schauer, Free Speech, 86.
13. I say “pure” or “principled” because the reasons for toleration are not based on self-interest—at least not directly.
14. Since I want to keep the focus squarely on toleration, I am going to take no position on the relative merits of the Kantian and utilitarian defenses, especially since the moral and political philosophy of the last two hundred years has made no meaningful progress on this issue.
15. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 214.
16. Ibid., 206–7.
17. I am going to ignore the later revision of Rawls’s views, marked by Political Liberalism (New York: Columbia University Press, 1993), since its concerns are inapposite for the principled argument here as they presuppose the existence of an “overlapping consensus” about principles governing political life that I do not think can be found. In this later work, Rawls comes to the view that (as Samuel Freeman puts it) “any traditional moral conception (justice as fairness [i.e., the conception of A Theory of Justice] included) is not feasible so far as it aspires to be the public grounding of substantive moral and political principles.” Samuel Freeman, “The Burdens of Public Justification: Constructivism, Contractualism, and Publicity,” Politics, Philosophy and Economics 6 (2007): 9. The moral theory of A Theory of Justice is now treated as another “comprehensive” doctrine that might be reasonably rejected by the members of a pluralistic society that liberalism aims to govern, and so fails by the standards of reasonable “public justification” such a society demands. (This is one reason, among others, that I think it is important to notice utilitarian arguments for related conclusions.) As critics of political liberalism have noted (see, e.g., Joseph Raz, “Facing Diversity: The Case of Epistemic Abstinence,” Philosophy & Public Affairs 19 [1990]: 3–46), this seems to confuse a question of political psychology and sociology (what does it take to make a political order legitimate in the eyes of its subjects?) with the question of what view of justice is true or warranted—unless, of course, one thinks general acceptability is a criterion of truth, which Rawls denies, and which seems implausible in any case.
18. A good recent example is Timothy Macklem, Independence of Mind (Oxford: Oxford University Press, 2006).
19. Michael Rosen’s critique of Marx’s thesis about false consciousness is an exception. See Michael Rosen, On Voluntary Servitude: False Consciousness and the Theory of Ideology (Cambridge, Mass.: Harvard University Press, 1996). I do not think that critique is successful. See Brian Leiter, “The Hermeneutics of Suspicion: Recovering Marx, Nietzsche, and Freud,” in The Future for Philosophy, ed. Brian Leiter (Oxford: Clarendon Press, 2004), esp. 84–87.
20. See Mill, On Liberty, esp. chapters 2 and 3.
21. Friedrich Nietzsche, Ecce Homo, Sämtliche Werke: Kritische Studienausgabe 6, ed. Giorgio Colli and Mazzino Montinari (Berlin: De Gruyter, 1980), 365 (part 4, section 1 of Ecce Homo).
22. Mill, On Liberty, 54.
23. An early conversation with Ross Harrison was helpful in clarifying my thinking on this topic.
24. Rawls, A Theory of Justice, 215, 213.
25. Mill, On Liberty, 9.
26. Mill, On Liberty, 53.
27. The “clear and present danger” test comes from the U.S. Supreme Court opinion in Schenck v. United States, 249 U.S. 47 (1919). It has been replaced, as a matter of doctrinal formulation, by the idea of “imminent lawless action” in Brandenburg v. Ohio, 395 U.S. 444 (1969).
28. Rawls, A Theory of Justice, 215.
29. In Political Liberalism, 348–56, Rawls in fact explicitly endorses the “clear and present danger” test.
30. Multani v. Comm’n scolaire Marguerite-Bourgeoys, 2006 SCC 6 (2006).
Chapter II Religion
1. This formulation owes much to David Killoren. There is a variant on this possibility—namely, features that are not unique to religious belief but that are nonetheless more salient, or more urgent, when annexed to religious beliefs than when not. We need not go so far as to say that when not annexed to religion they don’t warrant principled toleration at all. It might be enough that the case for toleration is strongest in the case of religion. Again, as with (2), in the text, I am not sure what those features might be. (Thanks to Les Green for clarification on this point.)
2. See, e.g., Abner S. Greene, “The Political Balance of the Religion Clauses,” Yale Law Journal 102 (1993): 1611–44, which treats an extrahuman source of normative authority as distinctive of religion and thus as doing justice to the understanding of religion in the American context. Andrew Koppelman rejects Greene’s view for its tethering of religion to theism, proposing instead that religion includes “all belief systems that make ultimate claims about the meaning of human existence.” See Andrew Koppelman, “Secular Purpose,” Virginia Law Review 88 (2002): 135. This is rather obviously overinclusive, as Koppelman (131) effectively concedes when subsuming Nietzsche’s philosophy under the rubric of religion so defined—and, of course, it would not only be Nietzsche’s philosophy that would turn out to be a “religion” on this view.
Some other writers (in different forms, U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas, as well as scholars like John Finnis and Michael McConnell) contend that religion should be singled out for legal solicitude because it is “good” for society, or for the believer, or perhaps both. (Many of these writers echo Alexis de Tocqueville, who similarly thought religion was essential to strengthening the civic and ethical virtues necessary for republican forms of government.) This claim, however, begs the question of what religion is (they do not define it, needless to say, as “what is good for society”), and it also depends on implausible factual claims—e.g., that religion is necessarily good for society or republican government. As noted in this chapter, counterexamples are legion: religion functions as often as support for authoritarianism and injustice, as it does for democracy and civic virtues. For additional criticism of Finnis’s particular version of this line of argument, see, e.g., Koppelman, “Secular Purpose,” 130.
Christopher Eisgruber and Lawrence Sager—first in “The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct,” University of Chicago Law Review 61 (1994): 1245–1315, and later in Religious Freedom and the Constitution (Cambridge, Mass.: Harvard University Press, 2007)—concur with my ultimate conclusion (that religious claims of conscience do not deserve special legal standing) but do explore the idea that religious belief demands special protection because it is supposed to be especially vulnerable to discriminatory treatment. But special vulnerability to discriminatory treatment can hardly mark out “religious belief ” as a category of human belief (and concomitant practices) warranting special protections. Race and physical disability, to take two obvious cases, make individuals vulnerable to discriminatory treatment, probably more often than religious belief and practice; but even if we confine our attention to beliefs there is ample evidence, in terms of legal sanctions and state persecution, that believing in abolitionism, or anarchism, or communism at various points in American history made one at least as vulnerable to discrimination as believing in a particular religion.
Many legal scholars have been attracted to Kent Greenawalt’s view that we should eschew definitions of religion in favor of looking at “indisputable instances” and then arguing by analogy to other cases, even when all the cases taken together do not share common features. See Kent Greenawalt, “Religion as a Concept in Constitutional Law,” California Law Review 72 (1984): 753–816. The problem with this kind of approach from a moral point of view is well-discussed in Timothy Macklem, Independence of Mind (Oxford: Oxford University Press, 2006), 120–26.
3. See, e.g., George C. Freeman III, “The Misguided Search for the Constitutional Definition of ‘Religion,’ ” Georgetown Law Review 71 (1983): 1519–65.
4. A useful, short overview of such approaches, and a criticism of their utility for doctrinal purposes in American law, can be found in Nelson Tebbe, “Nonbelievers,” Virginia Law Review 97 (2011): 1130–36. As Tebbe notes, also influential among social scientists has been a “substantive” definition according to which “[r]eligion is a system of communal beliefs and practice relative to superhuman beings.” Merriam-Webster’s Encyclopedia of World Religions, ed. Wendy Doniger (Springfield, Mass.: Merriam-Webster, 1999), 915. This account has the immediate disadvantage of ruling out Buddhism, but it is also not adequate for purposes of my question, for reasons that will become clear in the discussion in the text that follows. Bruce Lincoln, another leading scholar of religions, says, “Religion … is that discourse whose defining characteristic is its desire to speak of things eternal and transcendent with an authority equally transcendent and eternal.” “Theses on Method,” Method and Theory in the Study of Religion 8 (1996): 225–27 (2nd thesis). Such a broad definition would easily encompass much philosophy from Plato to Hegel.
5. Émile Durkheim, The Elementary Forms of Religious Life, trans. Karen E. Fields (New York: Free Press, 1995 [org. published 1912]), 34.
6. Ibid., 28–31. Buddhism may seem to present a different kind of problem on the account I will defend, and so I will return to it later in this chapter.
7. Ibid., 44.
8. Indeed, Durkheim is quite explicit that the aim of his “definition” is to pick out “a certain number of readily visible outward features that allow us to recognize religious phenomena” as a prelude to identifying the “deep and truly explanatory features of religion,” which is the ultimate aim of the inquiry. Ibid., 21.
9. See especially Durkheim, Elementary Forms, 34–38. Durkheim writes,
Sacred things are things protected and isolated by prohibitions; profane things are those things to which the prohibitions are applied and that must keep at a distance from what is sacred. Religious beliefs are those representations that express the nature of sacred things and the relations they have with other sacred things or with profane things. Finally, rites are rules of conduct that prescribe how man must conduct himself with sacred things. (38)
10. See Durkheim, Elementary Forms, 38–42.
11. Timothy Macklem, “Faith as a Secular Value,” McGill Law Journal 45 (2000): 1–63; Macklem, Independence of Mind.
12. Macklem, Independence of Mind, 133.
13. Ibid., 138–41. Macklem’s account ultimately founders over unclarity about the notion of what can count as a “reason,” which ultimately makes it hard to distinguish reason-based beliefs from faith-based beliefs.
14. John Witte Jr., Religion and the American Constitutional Experiment, 2nd ed. (Boulder, Colo.: Westview, 2005), 250.
15. It might be more accurate, though, to say that religious belief issues in as-if categorical demands on action, since it is familiar enough that religions can impose otherworldly incentives to produce action in this world that seems as if it were a response to a categorical reason, when it is really a response to an instrumental reason for achieving an otherworldly objective. As Adrienne Martin aptly put it to me in correspondence, “an instrumental reason motivates as strongly as the incentive on which it is contingent,” and otherworldly incentives can, of course, provide a very powerful instrumental reason! Indeed, as I note later in this chapter, to the extent that a metaphysics of ultimate reality is also a distinguishing feature of religion it may supply believers with instrumental reasons for acting insofar as acting in the right kinds of way enables believers to stand in the right kind of relationship to that ultimate reality.
16. Religious beliefs presumably do answer to evidence in instrumental contexts—that is, when there are questions about what means would be effective to the realization of the categorical commands of the religion. So, too, one suspects that the interpretation of categorical commands is causally influenced by the experiences of the interpreters: so, for example, “liberation theology” arose as a strand of Catholicism in the context of the horrific poverty and vicious oppression that characterized U.S. client states in Latin America after World War II. But this phenomenon trades on an ambiguity between evidence as justification for the proposition it supports and evidence as the experiences that explain why particular propositions are embraced. An adequate sociohistorical explanation of liberation theology must, of course, make reference to the climate of social and economic oppression in which it arose; but the beliefs constitutive of that religious outlook were not, themselves, presented as justified by those experiences. (Thanks to Sheila Sokolowski for raising this issue.)
17. While an experience of categoricity is central to anything that would count as a claim of conscience, a suitable account of conscience will presumably require a second dimension—namely, that the agent identify with or endorse the categorical command. This will be necessary to rule out, say, brute compulsions as claims of “conscience.”
18. There may, of course, be some matters that fall within the purview of religions—for example, the “meaning of life”—that are insulated from evidence only in the sense that no scientific evidence would seem to bear on them. Such beliefs are not my concern here, mainly because they are not distinctive to religion. See the discussion later in this chapter regarding moral judgments.
19. The objection I have sometimes heard that the proposed definition gives religion an unduly “Protestant” spin simply reflects confusion about what is at stake in the argument: if the basic moral demand is for toleration of liberty of conscience (see n. 49 and accompanying text) then, necessarily, we must inquire into the character of religious conscience, as distinct from ritual or practice. And, of course, all religions, not just certain forms of Christianity, inculcate distinctive beliefs in their adherents, beliefs that then figure in the believers’ conscience.
20. See, e.g., Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002) (involving a group of Jehovah’s Witnesses successfully challenging an ordinance against door-to-door canvassing); and Wisconsin v. Yoder, 406 U.S. 205 (1972) (involving a successful Amish challenge to compulsory education after grade school). See also Tsirlis and Kouloumpas v. Greece, App. No. 19233/91 and 19234/91, 21 Eur. H.R. Rep. 30 (1996) (involving Jehovah’s Witnesses ministers successfully obtaining an exemption from conscription); Chaput v. Romain, [1955] S.C.R. 834 (Can.) (involving Jehovah’s Witnesses successfully challenging the obstruction of a religious meeting); and West Virginia State Bd. of Education v. Barnette, 319 U.S. 624 (1943) (involving Jehovah’s Witnesses successfully challenging mandatory saluting of the American flag and recitations of the Pledge of Allegiance).
21. See, e.g., Mary Alice Gallin, German Resistance to Hitler: Ethical and Religious Factors (Washington, D.C.: Catholic University of America Press, 1961), esp. chap. 6; and, more recently, Nechama Tec, When Light Pierced the Darkness: Christian Rescue of Jews in Nazi-Occupied Poland (New York: Oxford University Press, 1986). Other researchers, however, deny that “rescue” behavior was more common among those who were especially religious. See, e.g., Samuel P. Oliner and Pearl M. Oliner, The Altruistic Personality: Rescuers of Jews in Nazi Germany (London: Collier Macmillan, 1988). The conflicting evidence is some indication of the fragility of a connection between religiosity and morally commendable behavior.
22. See, e.g., John W. de Gruchy, The Church Struggle in South Africa, 2nd ed. (Grand Rapids, Mich.: Eerdmans, 1986); and David L. Chappell, A Stone of Hope: Prophetic Religion and the Death of Jim Crow (Chapel Hill: University of North Carolina Press, 2004), esp. chap. 5.
23. We shall, however, turn to a further complication about the moral case later in this chapter in the discussion of cognitivist realists like Richard Boyd and Peter Railton.
24. I think this is true notwithstanding the unhappy strand of Marxist thought that took seriously the Hegelian idea that “dialectical reason” was a special kind of reason as opposed to a metaphysical dogma. For even the idea of dialectical reason took seriously the idea of evidence and rational justification, and, in fact, G.W.F. Hegel’s entire philosophical career was an exercise in providing evidence for the purportedly dialectical structure of ideological, and thus historical, evolution. That the Hegelian influence on Marxism produced a false picture of evidence and reasons does not alter the fact that Marxism took itself to have an obligation to answer to standards of rational justification.
25. See, e.g., Joshua Cohen, “Book Review: Karl Marx’s Theory of History: A Defence, by G. A. Cohen,” Journal of Philosophy 79 (1982): 253–73, esp. 266–68.
26. We will return to Thomism at the end of chapter 4.
27. The case of Marxism is strikingly different in this regard, since Marxists have radically revised their views in light of empirical evidence. At one extreme, see, e.g., Jon Elster, Making Sense of Marx (Cambridge: Cambridge University Press, 1985).
28. It might be said (as Kenneth Himma pointed out to me) that religious beliefs are, “in principle,” revisable: if God thundered from the sky that Heaven and Hell do not exist, it might be supposed that this would, in fact, change the minds of some number of religious believers. But “in principle” responsiveness to a kind of evidence that is never in the offing seems indistinguishable in practice from insulation from evidence, simpliciter.
29. I am grateful to Steve Shiffrin for pressing a version of this objection, and to Kent Greenawalt for impressing upon me the significance of this issue.
30. Bernard Faure, Unmasking Buddhism (Oxford: Wiley-Blackwell, 2009), 18.
31. Ibid., 16–17.
32. Faure uses terminology like “rationalism” quite loosely, but I take it he means to include someone who, unlike Nietzsche, believes human reason can reliably plumb the depths of reality and, by so doing, necessarily improve human life.
33. Friedrich Nietzsche, “The Antichrist,” in The Portable Nietzsche, ed. and trans. Walter Kaufmann (New York: Penguin, 1976), 587 (section 20); emphasis added.
34. Faure, Unmasking Buddhism, 37.
35. Damien Keown, Buddhism: A Very Short Introduction (Oxford: Oxford University Press, 1996), 9.
36. See esp. Keown, Buddhism, chap. 3.
37. See, e.g., Tai Sung An, Mao Tse-Tung’s Cultural Revolution (New York: Pegasus, 1972).
38. In this sense, the as-if categorical reasons may really be instrumental ones. See the discussion above in note 15.
39. So, for example, Mao thought forcing educated professionals to labor in the fields was an instrumentally rational approach to promoting the egalitarian values on which the communist revolution was based.
40. See, e.g., Richard Boyd, “How to Be a Moral Realist,” in Essays on Moral Realism, ed. Geoffrey Sayre-McCord (Ithaca, N.Y.: Cornell University Press, 1988), 181–228; and Peter Railton, Facts, Values, and Norms: Essays Toward a Morality of Consequence (Cambridge: Cambridge University Press, 2003).
41. If one takes views like John McDowell’s to be instances of cognitivist realism, then the issue is trickier; but I do not think views like McDowell’s are viable accounts of the objectivity of morality, for reasons discussed in Brian Leiter, “Objectivity, Morality, and Adjudication,” in Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford: Oxford University Press, 2007), 225–56. Those who consider other nonnaturalist versions of moral realism—or Kantian constructivist views—as real contenders for the correct metaethics will, needless to say, dissent from the argument in this section as well. Nonnaturalist versions of moral realism are, in my opinion, mere artifacts of academic philosophy, which, through specialization, encourages the dialectical ingenuity that results in every position in logical space finding a defender, no matter how bizarre. Putting that speculation to one side, I am, however, content to acknowledge that certain kinds of Kantian views and certain kinds of intuitionist views have quite a lot in common with religion.
42. Moral judgments, to be sure, may still be influenced by evidence insofar as the attitudes expressed presuppose factual claims that answer to evidence.
43. Julian Young, Nietzsche’s Philosophy of Religion (Cambridge: Cambridge University Press, 2006), 13.
Chapter III Why Tolerate Religion?
1. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 207.
2. Ibid.
3. There is a puzzle, tangential to my concerns here but suggested by the discussion in Rawls, A Theory of Justice. Individuals in the original position choose equal liberty of conscience because they can’t “gamble” (207) on the prospect that their own categorical religious commands will be disfavored in the society in which they find themselves. Yet insofar as they endorse equal liberty of conscience, they do have to gamble that their categorical religious commands will not be fundamentally illiberal ones—i.e., ones that demand the extermination of heresy and the like.
4. I am grateful to Adam Samaha for pressing this point.
5. John Stuart Mill, On Liberty, ed. Elizabeth Rapaport (Indianapolis: Hackett, 1978), 35.
6. It seems that W.V.O. Quine adopts a similar posture in Pursuit of Truth, rev. ed. (Cambridge, Mass.: Harvard University Press, 1992) when he comments,
Even telepathy and clairvoyance are scientific options, however moribund. It would take some extraordinary evidence to enliven them, but, if that were to happen, then empiricism itself … would go by the board. For remember that that norm … is integral to science, and science is fallible and corrigible. (20)
But, he then immediately adds, “it is idle to bulwark definitions [e.g., of science] against implausible contingencies,” such as evidence reviving telepathy as a scientific option (21).
7. We will return to the issue in chapter 4.
8. Many—perhaps most—religious believers in the industrialized nations these days embrace only a “softer” version of these kinds of beliefs: unhinged from evidence, yes, but much more rarely categorical in their commands. If there are reasons for tolerating these “experiments in living”—as there presumably are—it seems unlikely they are going to be peculiar to this “softer” form of religious belief and practice, which is harder to distinguish from other exercises of conscience that figure in people’s lives. The focus in the text is on the core, distinctive case of religious belief and religious believers.
9. It is hard to see how the fact that such beliefs also provide existential consolation would ameliorate the concern.
10. Those writers often dubbed “the new atheists” seem to argue in this vein. See, e.g., Richard Dawkins, The God Delusion (Boston: Houghton Mifflin, 2006); and Christopher Hitchens, God Is Not Great: How Religion Poisons Everything (New York: Hachette, 2007).
11. Only a view of well-being that ruled out many forms of self-deception and/or false belief would complicate the utilitarian analysis.
12. Multani v. Comm’n scolaire Marguerite-Bourgeoys, 2006 SCC 6 (2006).
Chapter IV Why Respect Religion?
1. Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008). Nussbaum’s framework is an essentially Rawlsian one, so “equal respect for conscience” is supposed to be embodied in the basic structure of society, not necessarily in interpersonal relations. I am not sure that point affects the analysis that follows.
2. She is not alone in thinking both “respect” and a special “faculty” for practical reasoning is important to the moral foundations of various liberties, and perhaps even of toleration itself. See, e.g., Rainer Forst, “Pierre Bayle’s Reflexive Theory of Toleration,” in Toleration and Its Limits, Nomos 48, ed. Jeremy Waldron and Melissa S. Williams (New York: New York University Press, 2008), 78–113.
3. Nussbaum, Liberty of Conscience, 19–21.
4. Ibid., 24.
5. Is there some middle conceptual ground between the two? Perhaps, as Benjamin Whiting has impressed upon me, it is something like what Leslie Green, “On Being Tolerated,” in The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy, ed. Matthew H. Kramer (Oxford: Oxford University Press, 2008), 277–98, calls “understanding.” How such an attitude could be made concrete in a legal regime is unclear, as Whiting has argued in unpublished work.
6. Stephen L. Darwall, “Two Kinds of Respect,” Ethics 88 (1977): 36–49. Darwall has since revised his views; see, e.g., Stephen L. Darwall, “Respect and the Second-Person Standpoint,” Proceedings and Addresses of the American Philosophical Association 78 (2004): 43–59.
7. Darwall, “Two Kinds of Respect,” 38, 45.
8. Ibid., 38–39; emphasis in the original. Darwall introduces a further, obviously Kantian, element to the account according to which “the excellences must be thought to depend in some way or other on features of character” (42).
9. Leslie Green, “Two Worries about Respect for Persons,” Ethics 120 (2010): 213.
10. Nussbaum, Liberty of Conscience, 24.
11. Ibid., 19.
12. Ibid., 52.
13. Whether you can act on that attitude consistent with the Harm Principle is a separate question.
14. Hitler, let us remember, was a man of conscience, too—so committed, on principle, to the extermination of European Jewry that even when it would have been prudent to use the Jews as slave labor to free up German manpower for the war, he persisted, to the bitter end, in exterminating them. Does Hitler’s failed exercise of conscience warrant any respect? (It does not even warrant toleration!)
15. It afflicts not only her view, of course—Nussbaum here follows Immanuel Kant, and related rhetoric is embedded in the Universal Declaration of Human Rights. Such rights undoubtedly maximize human well-being, but it is less clear whether the concept of “respect” can be cogently motivated as their moral foundation. As with Darwall’s recognition respect, talk of respect seems to be morally otiose.
16. Nussbaum specifically denies in later work that “respect for persons is … a subjective emotional state, such as a feeling of admiration,” suggesting that appraisal respect could not be what she has in mind. See Martha C. Nussbaum, “Perfectionism Liberalism and Political Liberalism,” Philosophy & Public Affairs 39 (2010): 18. But then it really is unclear what resources her view has to respond to the challenge in the text. Of course, as Emanuela Ceva and Giorgio Pino have impressed upon me, the theoretical options are not wholly exhausted by, on the one side, principled toleration (in my sense) and, on the other, what I am calling affirmative respect. So, for example, Joseph Raz (in, e.g., “Autonomy, Toleration, and the Harm Principle,” in Justifying Toleration: Conceptual and Historical Perspectives, ed. Susan Mendus [Cambridge: Cambridge University Press, 1988], 155–75) argues that toleration is instrumentally valuable for producing a plurality of options, which is necessary to realize the paramount value of autonomy (toleration ensuring the availability of options among which to choose). Such a view gives rise to what one might call positive toleration, not simply the moral obligation to put up with beliefs and practices one disapproves of but to actively promote their flourishing so that they are live options. But the Razian argument depends on the idiosyncratic intuition that autonomy is the primary liberal value—rather than, say, well-being simpliciter or respect for the dignity of the person. Certainly Western legal systems do not evidence commitment to autonomous choice, in Raz’s sense, as the primary value. (Among other peculiarities, Raz’s view does not even credit autonomous choice exercised poorly—or mistakenly—with value.)
On the other hand, there are radical Kantian views according to which the object of respect is not simply “the capacity for conscience” (in Nussbaum’s sense) but rather the fact that persons have a capacity for “self-legislation” or “rational choice,” facts which are, once again, supposed to give rise to more robust moral duties than that of principled toleration in my sense. The difficulty with these views is that the “facts” that are supposed to motivate them are pseudo-facts, attributing to persons capacities they don’t, in the heteronymous world, actually have in most cases.
17. Simon Blackburn, “Religion and Respect,” in Philosophers without Gods: Meditations on Atheism and the Secular Life, ed. Louise M. Antony (Oxford: Oxford University Press, 2007), 179–93. Blackburn’s account, it bears emphasizing, concerns an interpersonal context calling for respect (or toleration) rather than the context of institutional practices toward individuals.
18. Ibid., 179.
19. Ibid., 180.
20. Ibid.
21. Friedrich Nietzsche, On the Genealogy of Morality, trans. Maudemarie Clark and Alan J. Swensen (Indianapolis: Hackett, 1998), 18. (First Essay, section 9.)
22. It also depends on whether there obtain excusing conditions for the epistemically culpable false belief. Sometimes the costs of giving up false beliefs that are widely accepted in one’s family or community, for example, are intolerably severe such that someone holding such beliefs may be epistemically culpable but excused nonetheless. Religious beliefs may often be such beliefs, but it hardly follows that that kind of excusing condition would rescue them for appraisal respect.
23. See, e.g., Alvin Plantinga, Warranted Christian Belief (Oxford: Oxford University Press, 2000) for a recent example.
24. Alex Byrne, “God,” Boston Review, January–February 2009, 31.
25. I borrow the phrase from the generally sympathetic account in Peter Forrest, “The Epistemology of Religion,” Stanford Encyclopedia of Philosophy, revised version of March 11, 2009, at http://plato.stanford.edu/entries/religion-epistemology.
26. Here I am indebted to Peter Railton.
27. Again, if we were to bite the “speculative bullet” of chapter 3, then we could make a stronger claim on behalf of religious belief, but for the reasons given therein I do not see a case for doing so.
28. John Finnis, “Does Free Exercise of Religion Deserve Constitutional Mention?” American Journal of Jurisprudence 54 (2009): 41–66.
29. Ibid., 56.
30. Ibid., 46.
31. Ibid., 47.
32. See, e.g., W.V.O. Quine and Joseph Ullian, The Web of Belief (New York: Random House, 1970); Lawrence Sklar, “Methodological Conservatism,” in Philosophy and Spacetime Physics (Berkeley and Los Angeles: University of California Press, 1985), 23–48; and Philip Kitcher, The Advancement of Science: Science without Legend, Objectivity without Illusions (New York: Oxford University Press, 1993).
33. Finnis, “Does Free Exercise of Religion Deserve Constitutional Mention?” 47.
34. Ibid., 49.
35. In such a case, of course, it isn’t the distinctively religious components of the beliefs and practices that warrant appraisal respect but other features of beliefs and practices that happen to be religious. So, for example, it is reasonable to think that Martin Luther King’s religious commitments, which led him to oppose racial injustice, warrant appraisal respect even though it is the normative content of his particular religious vision, and not its distinctive religiosity, that elicits that attitude. (Thanks to Richard Kraut for forcing me to clarify my position in this section.)
Chapter V The Law of Religious Liberty in a Tolerant Society
1. On the relevant sense of “conscience,” see the discussion in chapter 2, note 17, and in the accompanying text. The Rawlsian and Millian arguments for liberty of conscience (considered in chapter 1) might diverge in their treatment of these cases. Mill’s emphasis on the utilitarian value of different “experiments in living” is going to countenance a wider swath for claims of conscience than the Rawlsian approach, which arguably requires that the claims be backed by sufficiently serious moral and political reasons. But even the character I call the “lone eccentric” might have such reasons (arguably Thoreau was such a “lone eccentric,” though not one specifically interested in knives!).
2. I owe this way of putting the point to Michael White.
3. See the discussion in chapter 2.
4. It is true that in the United States, the Supreme Court has held that, “The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.” See Thomas v. Review Bd. of the Indiana Employment Security Div., 450 U.S. 707, 715 (1981), and has affirmed that the “sincerity” of the belief is ultimately decisive. Yet even Thomas involved someone who was clearly a Jehovah’s Witness, though one whose faith happened to demand of him actions that other Jehovah’s Witnesses did not view as mandatory. Of course, we saw something similar in the Canadian case of Multani v. Comm’n scolaire Marguerite-Bourgeoys, 2006 SCC 6 (2006): not all Sikhs thought it was essential to carry a real knife, yet the Canadian Supreme Court upheld the exemption for those Sikhs who thought the actual knife essential to religious observance. In these, and similar cases, the courts still rely on evidence of an organized religion, and its requirements (even if not universal), in assessing the validity of the claims. We see something similar at work in the U.S. Supreme Court decision in Frazee v. Illinois Dep’t of Employment Security, 489 U.S. 829 (1989), notwithstanding the surface rhetoric of the opinion affirming that a claimant need not attach his claim of conscience to any particular religious sect and its doctrines. Yet Mr. Frazee did affirm that he was a “Christian” and he sought exemption in connection with his observance of the familiar Christian Sabbath, Sunday. On both fronts, then, his claim was easily recognizable as a religious one in a Christian-majority society like the United States.
5. Other epistemic devices are, of course, also possible, to try to better calibrate exemptions with those who have genuine claims of conscience. Laws, for example, might impose different burdens on those seeking exemptions, as a way of identifying those with a genuine claim of conscience (e.g., someone seeking an exemption from one year of military service might have to undertake, instead, two years of alternative civil service). It seems unlikely, of course, that any alternative measures are going to resolve the epistemic problem, and they will still be vulnerable to the Rousseauian worry, discussed later in this chapter.
6. See, e.g., Gary L. Francione, “Animal Rights and Animal Welfare,” Rutgers Law Review 48 (1996): 397–469.
7. See, e.g., Christine M. Jackson, “The Fiery Fight for Animal Rights,” Hastings Center Report 19, no. 6 (1989): 38, which discusses the radical tactics of certain animal rights groups, including the Animal Liberation Front.
8. I am grateful to David Strauss for pressing a version of this objection.
9. Here I am indebted to Ben Laurence for help in refining this objection.
10. The Rousseauian concern would also count against Kent Greenawalt’s prima facie attractive proposal that exemptions should depend on how serious the violation of conscience would be for the claimant. So, for example, being forced to kill in war over one’s conscientious objections seems more serious than denying an exemption for use of an otherwise illegal drug in a religious ritual. See, e.g., Kent Greenawalt, Religion and the Constitution, vol. 1, Free Exercise and Fairness (Princeton, N.J.: Princeton University Press, 2006), 65–67. My own inclination is to think that the real question is the burden that others in the community must bear, not the “seriousness” of the conscientious violation.
11. Consider peyote, the illegal narcotic at issue in the controversial U.S. Supreme Court case Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872 (1990): it apparently has a disgusting taste, and is barely used, if at all, outside the religious rituals at issue in that case. But there are also many other exemptions from generally applicable laws that do not meaningfully shift burdens. So, for example, to exempt Catholic priests from performing gay marriages would not be a burden-shifting exemption as long as gay couples can otherwise be married. On the other hand, exempting Catholic pharmacists from dispensing “morning-after pills” (that effectively terminate pregnancies) might well be a burden-shifting exemption, depending on the community at issue and the availability of the relevant medicines.
12. Brian Barry defends a version of this view in Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, Mass.: Harvard University Press, 2001). But Barry’s argument is predicated on a kind of “moral realism,” a confidence in the objective moral truth that there really are certain rights all people have. See the useful discussion in Abner Greene, “Three Theories of Religious Equality … and of Exemptions,” Texas Law Review 87 (2009): 963–1007. Being a moral skeptic (and finding Barry’s arguments for his moral realism about universal human rights rather thin), I cannot take Barry’s route. But why then should a moral skeptic think that societal judgments about the “general welfare” ought to trump individual claims of conscience? Notice, to start, that this is conceptually no different from the question, “Why should individual claims of conscience trump judgments about the general welfare”? Once we eschew moral truths—alas, there are none, as Nietzsche noticed—we are in the domain of attitudes and feelings, none the worse, of course, for being ours. If I am not reliably tracking the attitudes of readers of this book about the relative importance of the general welfare versus individual exemptions, then my arguments have run out. And if one lives in a society in which the conception of the “general welfare” embodied in the law is at odds with the attitudes of most citizens, then the argument will also fail in practice. (I am grateful to Abner Greene for impressing on me the force of this general metaethical question.)
13. We will return to the question of what state purposes are actually neutral and permissible later in this chapter.
14. See Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008), 116–20.
15. This will be true even in nondemocratic societies, since the costs to an authoritarian society of controlling the population will prove overwhelming it if deviates too widely from accepted conscientious norms in the population.
16. Notice also that adopting a strong antiestablishment principle, along the lines of French laïcité, would not obviate the problem, which results not simply from government efforts to promote particular religions but from the way in which the other regulatory actions of government will be insensitive to infringements upon matters of minority conscience, religious or otherwise. But perhaps such burdens are the price of not treating religious conscience as special, when no principled argument could support that practice? We return to the special problems posed by laïcité later in this chapter.
17. The Internal Revenue Code states, that “Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable scientific, testing for public safety, literary, or educational purposes … and which does not participate in … any political campaign on behalf of (or in opposition to) any candidate for public office” is exempt from Federal income taxes. I.R.C. § 501(c)(3).
18. That fact might be thought to lend support to the Eisgruber and Sager argument discussed earlier (see chap. 2, n. 2). But the question there was whether vulnerability to discrimination was adequate to mark out religion as deserving special legal protection, and the answer to that question is unaffected by the fact that religion, like so many other kinds of human beliefs and practices, may be susceptible to discrimination: what matters for the point in the text is that religion is vulnerable to discrimination, not that it is especially or uniquely so vulnerable.
19. Law No. 2004-228 of March 15, 2004, Journal Officiel de la République Française [J.O.] [Official Gazette of France], March 17, 2004, 5190; see also BBC News Europe, “French Scarf Ban Comes into Force,” September 2, 2004, at http://news.bbc.co.uk/2/hi/3619988.stm.
20. As the 1958 French Constitution provides in Article 1, “France shall be an indivisible, secular, democratic and social Republic” 1958 Const. art. 1, while the French Law of 1905 makes clear in Article 1 that “free exercise of religion” is guaranteed “under restrictions prescribed by the interest in public order” and Article 2 provides that the republic “does not recognize, remunerate, or subsidize any religious denomination.” See, generally, Mukul Saxena, “The French Headscarf Law and the Right to Manifest Religious Belief,” University of Detroit Mercy Law Review 84 (2007): 769–71. Not all supporters of laïcité, however, support this particular law. See also Nicolas Weill, “What’s in a Scarf? The Debate on Laïcité in France,” French Politics, Culture and Society 24 (2006): 59–73. For a more general overview of French laïcité, see Jean Baubérot, “The Place of Religion in Public Life: The Lay Approach,” in Facilitating Freedom of Religion or Belief: A Deskbook, ed. Tore Lindholm, W. Cole Durham Jr., and Bahia G. Tahzib-Lie (Leiden, Netherlands: Nijhoff, 2004), 441–53.
21. T. Jeremy Gunn, “Religious Freedom and Laïcité: A Comparison of the United States and France,” Brigham Young University Law Review 2004, no. 2 (2004): 456–57, notes that “the headscarf is increasingly seen as the symbol of a foreign people—with a foreign religion—who have come to France, but who do not wish to integrate themselves fully into French life or accept French values” and that “just before the events in 2003 that raised the headscarf to a sensational media issue, some leading French legal scholars suggested the possibility that the real concern regarding the Islamic headscarf may not be related to high principles of a neutral republican education in public schools, but a deeper unease about Islam.” See also Daniel Williams, “In France, Students Observe Headscarf Ban,” Washington Post, September 3, 2004, which reports, “Critics condemned the law as an attack on religious freedom and said it would stigmatize the estimated 5 million Muslims in France. Some Muslim groups pledged further protests, calling the restriction anti-Islamic.” And Elaine Sciolino, “Ban on Head Scarves Takes Effect in a United France,” New York Times, September 2, 2004, notes, “Although the ban on ‘conspicuous’ religious symbols also applies to Jewish skullcaps and large Christian crosses, there was never any doubt that it was primarily aimed at France’s five million Muslims and what is widely perceived as creeping fundamentalism in their midst.”
22. I am going to bracket here the possibility that the laws in question were “really” motivated by gender equality concerns—despite the fact that those concerns were not part of the public rationale for the laws in question. In this alternative scenario, the exclusion of religious garb from the public sphere was motivated by a concern for the “general welfare”—namely, the promotion of gender equality. Under that rationale the analysis would change, though it would be rather difficult to explain how the actual law in question also banned Jewish skullcaps and large crosses, whose oppressive effects on women are not well documented. (Thanks to Jane Cohen and Ethan Lieb for pressing versions of this objection.)
23. See Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Anti-semitisme, 379 F.3d 1120, 1121 (9th Cir. 2004) (“Section R645-2 of the French Criminal Code bans exhibition of Nazi propaganda for sale and prohibits French citizens from purchasing or possessing such material”); see also Robert A. Kahn, Holocaust Denial and the Law: A Comparative Study (New York: Palgrave Macmillan 2004), 15, which describes Germany’s prohibition against forms of Nazi speech. The United States is, of course, an outlier among Western democracies in this regard. Perhaps, given the United States’ unusually reactionary public culture and the plutocratic character of its political system, this is fortunate and a necessary condition for toleration in practice. But the discussion in the text takes for granted that principled toleration is compatible with measures like restrictions on Nazi speech.
24. See, generally, Ian Kershaw, Hitler, the Germans, and the Final Solution (New Haven, Conn.: Yale University Press, 2008), 92.
25. Herlinde Pauer-Studer and J. David Velleman, “Distortions of Normativity,” Ethical Theory and Moral Practice 14 (2011): 329–56.
26. Even the Rawlsian theory of justice operates under a similar side-constraint, as is argued in chapter 1.
27. See the discussion in chapter 3.
28. John Stuart Mill, On Liberty, ed. Elizabeth Rapaport (Indianapolis: Hackett, 1978), 35.
29. It is possible, to be sure, that French laïcité makes no moral sense and that it should either encompass a general ban on religious expression, comparable to the ban on Nazi expression, or it should be relaxed so as to accommodate religious expression in the public spheres. The former seems to me an approach of dubious merit on Millian grounds, since even if we assume that many religious beliefs are false, not all of the beliefs associated with religion are, and even the false ones may still have the salutary effect of forcing those who reject them to clarify their reasons for doing so. See the discussion in chapter 1.
30. Penny Edgell, Joseph Gerteis, and Douglas Hartmann, “Atheists as “Other”: Moral Boundaries and Cultural Membership in American Society,” American Sociological Review 71 (2006): 215, notes that “the gap in willingness to vote for atheists versus other religious minorities … is large and persistent,” and that in surveys fewer than half of respondents expressed willingness to vote for an open atheist.
31. In the next section we shall return to an important qualification of this claim. It is one thing to be neutral with respect to the objective of suppressing or burdening a particular claim of conscience (unless doing so would be justified on Harm Principle grounds); it is quite another to be neutral about what ought to be done, where what ought to be done may reflect what I will call a “Vision of the Good.” The state cannot be neutral as to the latter unless it stops being a state.
32. The United States is, to be sure, somewhat unusual among the developed Western democracies in sometimes restricting access to public money for well-established medical procedures and research because it offends sectarian religious claims of conscience. See, e.g., Omnibus Appropriations Act of 2009, H.R. Res. 1105, 111th Cong. § 507 (2009) (prohibiting federal funding for any abortion or health benefits coverage that includes coverage of abortion); Balanced Budget Downpayment Act of 1996, H.R. Res. 2880, 104th Cong. § 128 (1996) (banning federal funding for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero….”); see also Office of the Press Secretary, White House, President Discusses Stem Cell Research, press release, August 9, 2001, at http://georgewbush-whitehouse.archives.gov/news/releases/2001/08/20010809-2.html; and O. Carter Snead, “Public Bioethics and the Bush Presidency,” Harvard Journal of Law and Public Policy 32 (2009): 886–87, which notes that the first two vetoes of George W. Bush’s presidency were used to prevent Congress from liberalizing embryonic stem cell funding policies, and also the legislative successes and failures of the Bush administration in attempting to curtail federal funding of embryonic stem cell research.
33. See the earlier discussion, pp. 110–11.
34. It is important to bear in mind that when governments endorse a vision of what is “true” and “real” they are almost always doing so because of practical considerations—that is, because they believe (correctly, in this instance) that a scientific view of the world is practically useful, and so students should learn scientific truths in school, not religious ones. We will return to this issue below in n. 46.
35. There is a stronger argument that it is consistent with principled toleration for a state to prohibit schoolteachers from wearing religious garb, as many German states do, since teachers arguably do “speak for the state” and so their sartorial choices are far more significant. Although the German Constitutional Court deemed unconstitutional in 2003 the refusal to hire Fereshta Ludin, a Muslim teacher, for wearing a headscarf, it did so on the grounds that the constitutional requirement of state neutrality about religion did not prohibit her from doing so; at the same time, it said that states could, in fact, consistent with that requirement, specifically prohibit teachers from wearing religious garb. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Sep. 24, 2003, 2 BvR 1436/02. Subsequently, in the case of another Muslim teacher, Brigitte Weiss, the court upheld one state’s ban on the headscarf. Verwaltungsgericht [VG] [Administrative Court] Düsseldorf, Aug. 14, 2007, docket number 2 K 1752/07 (Ger.), at http://www.justiz.nrw.de/nrwe/ovgs/vg_duesseldorf/j2007/2_K_1752_07urteil20070814.html. See also the discussion later in this chapter about what it means for the state to endorse a Vision of the Good.
36. The recent European Court of Human Rights case affirming the right of Italian schools to place the crucifix in school classrooms may provide another example. See Lautsi v. Italy, App. No. 30814/06, 50 Eur. H. R. Rep. 42 (2010). The court acknowledged, of course, that the state “is forbidden to pursue an aim of indoctrination” of children (par. 61), but also remarked that a crucifix placed on the wall is not like “didactic speech or [required] participation in religious activities” (par. 72). Since the Italian prime minister at the time of the decision, Silvio Berlusconi, was a notorious serial lecher who also fraternized with fascists and was an aider and abettor of the international war criminal George W. Bush, and since Italy, like all advanced capitalist countries, is suffused with images of sexuality, consumerism, and hedonic indulgence, it really is a bit hard to credit the idea that mere symbols on the walls of classrooms would result in religious indoctrination. But contrast this with the reasoning of the German Constitutional Court in the Weiss case, above, in n. 35. My cultural intuition is that crosses on the wall are less likely to produce indoctrination than teachers clad in religious garb, but ultimately this is a subtle psychosocial question for which the answer is almost certainly to be very culturally specific.
37. A state might, of course, endorse a Vision of the Good that demands more than principled toleration. Consider what Nussbaum, Liberty of Conscience, 226–30, calls “the Madisonian ideal” of “equal respect,” which prohibits branding, symbolically or otherwise, certain citizens as “outsiders.” Such a vision could, conceivably, demand exemptions from generally applicable laws as the price of sustaining a kind of equality in public life. I think it is doubtful, though, whether any state could really embrace as stringent an “equal respect” criterion as Nussbaum contemplates, as suggested by some of the astonishing accommodations her view imagines: for example, children being able to opt out of a proper physics or biology class because as “a matter of conscience” they believe God created the universe and human beings, in a way inconsistent with the “Big Bang” and the theory of evolution by natural selection.
38. I am here aligning my view with that of the so-called perfectionists in political theory, like Joseph Raz and Steven Wall. Rawlsian political liberals think a state can actually abstain from promoting a Vision of the Good that isn’t generally accepted (isn’t an object of an “overlapping consensus”), 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. Why this is not as “disrespectful” as a state that endorses a particular Vision of the Good not everyone accepts is a bit mysterious. (I should add that I view the early Rawlsian theory of justice, whose central intuitions I invoke in chapter 1, as severable from the later Rawls’s purported agnosticism about comprehensive doctrines. The early Rawlsian thought experiment involving the original position gives expression, in my view, to one kind of Vision of the Good that undergirds a regime of toleration. Mill offers another, that gets us to the same place. Thanks to Richard Kraut for pressing me on this issue.)
39. Lemon v. Kurtzman, 403 U.S. 602, 619 (1971). Lemon has, of course, been eviscerated in some measure by subsequent U.S. Supreme Court decisions, but the “viewpoint discrimination” revolution discussed in this chapter did, in my view, the most damage to the principle.
40. For representative cases, see Widmar v. Vincent, 454 U.S. 263 (1981); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993); and Rosenberger v. Rector and Visitors of the Univ. of Virginia, 115 S. Ct. 2510 (1995).
41. To be sure, there might be a serious equality concern if a state decided to single out only the religious views inconsistent with its Vision of the Good, permitting all the nonreligious views inconsistent with its vision to enjoy access to school facilities. The claims herein are not meant to prejudge the equality concerns such a practice would raise. But what the state can do is exclude all views inconsistent with its Vision of the Good from public schools. (Thanks to Kent Greenawalt for calling my attention to this issue.)
42. By “turning over its classrooms,” I am imagining that the Ptolemaic view is to be presented as a serious contender for the students to consider, not simply as a joke or a bit of scientific history.
43. Opening school facilities to after-school groups presents an intermediate case. If the school lets the anti-Copernicans use a classroom after the school day ends for its student group it is an open question whether that is inconsistent with the state’s endorsement of the Copernican vision. (Thanks to Mitch Berman for raising this point.)
44. The use of public school facilities by sectarian religious groups is somewhere between the cases of sartorial expression on the one extreme and introjections of religious dogma into the science curriculum on the other. Again, whether the opening of public facilities to sectarian religious groups will offend principled toleration will turn heavily on local circumstances.
45. We will suppose these are Jesuits who are “establishing” Catholicism.
46. There might seem to be a problem in the case of the establishment of particular religions, like Catholicism, that is not at issue in the case of the establishment of, at least, atheism. The problem pertains to the particular way in which it seems religious doctrines conjoin claims of theoretical and practical reason. Theoretical reason is concerned with what one ought to believe, practical reason with what one ought to do. Religious systems of belief, like Catholicism, typically conjoin them: one ought not abort fetuses because one ought to believe that the fetus incorporates a God-given soul, and one ought not destroys God’s creations. In consequence, the establishment of Catholicism will, inevitably, reach into private action in ways that increase the risk of coercive burdens on conscience: to establish Catholicism it is not enough to teach in the public schools what children ought to believe but also how they ought to act and, in particular, how they ought to act in matters far removed from anything that might otherwise be a subject of the public school curriculum. Yet atheism, on its face, seems to only impose a demand of theoretical reason: one should not believe in God. But practical reason is, of course, always responsive to claims of theoretical reason, so if the state endorses a claim of theoretical reason to the effect that God does not exist, that cannot avoid affecting the practical reason of any citizens who think the existence of God is relevant to what ought to be done. In the end, then, I am not sure the establishment of Catholicism will really be different in kind from the establishment of atheism. There is, as Friedrich Nietzsche well understood, a kind of unity of theoretical and practical reason, though not the kind Immanuel Kant imagined: the overvaluation of truth characteristic of the post-Christian West means that the “truth” about matters is typically thought to be significant in practical reasoning about what ought to be done. One need only read the polemics of “new atheist” writers like Richard Dawkins to see this clearly.
47. See, e.g., Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 291 (2000) (rejecting the argument that prayer delivered over a public address system prior to high school football games is not “coercive” because attendance at the games is voluntary); and Lee v. Weisman, 505 U.S. 577, 588 (1992) (referring to the “subtle coercive pressures” present in prayers at a high school graduation ceremony).
48. Perhaps, though, particular religions are candidates for appraisal respect. Nothing in my argument in chapter 4 rules out that possibility.
49. Thanks to Larry Sager for pressing a version of this worry.