Is Religious Freedom Irrational?
Paulsen, Michael Stokes, Michigan Law Review
IS RELIGIOUS FREEDOM IRRATIONAL?
Why Tolerate Religion? By Brian Leiter. Princeton and Oxford: Princeton University Press. 2013. Pp. xv, 133. $24.95.
Brian Leiter1 is almost exactly half right. There is no convincing secular- liberal argument for religious liberty, in the sense of unique accommodation of religious beliefs and practices specifically because they are religious. In- deed, from a thoroughgoing secularist perspective-from a stance of com- mitted disbelief in the possible reality of God or religious truth, and perhaps also from the perspective of unswerving agnosticism-"toleration" of relig- ion is almost intolerably foolish. Affirmatively protecting the free exercise of religion, in the strong sense of freedom of persons and groups to act on religious convictions in ways opposed to secular legal norms, is even harder to justify. Religious liberty simply does not make much sense on purely sec- ular grounds that start from the premise that sincere religious conviction does not correspond to anything real. That is Leiter's starting point, and it is not surprising that he ends up where he does-concluding that there is no good reason for uniquely protecting religious conscience and conduct.
But there is an altogether straightforward reason for this. The philo- sophical premises upon which a serious commitment to religious liberty de- pends are ultimately religious premises. To look for secular justification for religious liberty is to look in the wrong place. And not to find such secular justification is not shocking. Religious freedom (as I have argued at length elsewhere)2 at bottom only makes full sense on the suppositions that God exists or may well exist; that God's nature and character are such (or may well be) as to give rise to obligations of loyalty and fidelity and thus to obligations with respect to human conduct; that the true commands of God, whenever knowable, are, in principle, prior to and superior in obligation to the commands of men; and that human civil society, acknowledging the priority of God's true commands (yet conceding the inability of human gov- ernmental institutions to know them perfectly), rightly must accommodate the broadest possible sphere of religious liberty to plausible claims of relig- ious obligation, even when such a sphere of liberty involves conduct in con- flict with society's usual rules. Without such foundationally religious premises, religious liberty does not make great sense as a social and constitu- tional arrangement.
Why Tolerate Religion? If one is a secularist, there really is no fully ac- ceptable answer. The only convincing reason for protecting religion is the conviction that there is, or may be, such a thing as ultimate religious truth, that such truth is in principle the most important thing there is, and that, consequently, it should prevail over any social rule, law, or custom to the contrary. If religious truth might exist, the freedom to pursue it is worth protecting to the highest degree possible; and the freedom to act in accor- dance with one's sincere religious convictions similarly merits the greatest possible societal indulgence and legal protection. And one can reach those convictions on rational premises: Religious belief is (in at least some of its forms) an entirely rational, reasonable position. Even if reason might not get one all the way to religious faith (and may better support some religious beliefs than others), it supports the general rationality of religious convic- tion. Protection of religious freedom is, largely as a result of this fact, an equally sensible policy. Liberty is an imperfect policy, but it is good for pro- moting rational inquiry and for protecting what may well be rationally justi- fied, true, and (if so) supremely important religious convictions.
Leiter assumes the opposite (quite literally, he assumes it): that religion is intrinsically false and irrational.3 This is a major philosophical and intel- lectual weakness in his argument, as I discuss below. …