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Reply to Five Critics of Why Tolerate Religion?

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This is my contribution to a symposium on my book Why Tolerate Religion? (Princeton, 2013), in which I respond to essays by François Boucher (Montreal) and Cécile Laborde (University College London), Frederick Schauer (Virginia), Corey Brettschneider (Brown), and Peter Jones (Newcastle). I clarify and revise my view of the sense in which some religious beliefs are “insulated from reasons and evidence” in response to the criticisms of Boucher and Laborde (2015), but take issue with other aspects of their critique. I defend most of my original argument against utilitarian and egalitarian objections from, respectively, Schauer and Brettschneider. I also discuss and defend the “No Exemptions” approach to conscientious objection to neutral laws of general applicability against a variety of objections, arguing, in particular, that my view is probably not very different from that of Jones.

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  1. Brian Leiter, Why Tolerate Religion? (Princeton: Princeton University Press, 2013). I first broached the basic ideas in a paper of the same name in Constitutional Commentary 25 (2008): 1–27, though I modified the original analysis of religions for purposes of the book, as well as adding discussions of alternative accounts of the moral foundations of religious liberty and about the relationship between principled toleration and religious establishment.

  2. “Why Tolerate Conscience?” Criminal Law and Philosophy. doi:10.1007/s11572-014-9325-2.

  3. Cf. the incompetent review by Susan Mendus in Political Theory 41 (2013): 766–769. Mendus, in the space of only a few pages, mischaracterizes the argument of my colleague Martha Nussbaum’s book Liberty of Conscience (failing to realize that Nussbaum agrees with me that religion is not special, that it is conscience that is special), wastes time arguing that not all religious beliefs are insulated from reasons and evidence (even though my claim was that only some beliefs in all religions are), and says that I “impl[y] that religious believers are not only stupid, but willfully stupid” (769). She can cite no actual text in support of that point, since it is quite inconsistent not only with reality, but with an abiding Nietzschean theme of my book, namely, that false and unwarranted beliefs are essential conditions of human life (cf. WTR, pp. 90–91). Her attempt to support this fabricated “implication” consists in claiming that I “denounc[e] much religious belief as ‘culpably false’ or even ‘perniciously false’” without noting that this was offered only as a possible interpretation of an argument of Simon Blackburn’s, which I went on to reject. None of these mistakes are repeated in any of the thoughtful critiques in this symposium.

  4. I allow, of course, that for purposes of other kinds of inquiry, such as sociological ones, these may not be the relevant features. See WTR, pp. 28–30.

  5. The only other place in WTR that Boucher and Laborde (2015) point to as exemplifying a mistaken endorsement of Belief Insulation is my discussion (pp. 48–49) of the idea that a “metaphysics of ultimate reality” might be an additional characteristic of religious belief. I argue, instead, that it should be subsumed under the insulation criterion. Of course, as Boucher and Laborde (2015) note, for some logical positivists, metaphysical claims were marked by Belief Insulation. But one need not endorse that view to recognize that many (not all) metaphysical claims are marked by Believer Insulation, i.e., believers hold to their metaphysics of ultimate reality regardless of whether it enjoys any support from naturalistic reasons and evidence. (In the most substantial and interesting of the unsympathetic reviews, Robert Adams complained about my endorsement of “an empiricist epistemology that does not clearly allow more room for metaphysical belief than the Vienna Circle did.” Review of WTR, Notre Dame Philosophical Reviews 01.06.2013, Adams, a leading figure in the revival of metaphysics, and in the epistemology of religious belief, is correct in his diagnosis: unfashionably, I suppose, I think the Vienna Circle had the broad outlines of the correct epistemology, though mostly for the wrong reasons. We should embrace a naturalistic conception of reasons and evidence because of its success, and we should treat as good evidence whatever successful sciences, natural or cognitive, produce. But given that epistemology [but not the semantic doctrines of the Vienna Circle], it follows that the kinds of metaphysical claims at issue could only be embraced by someone in the grips of Believer Insulation.)

    To be sure, some of the metaphysical claims may be non-cognitive to the extent they are primarily normative in character. I return to that issue in the text.

  6. Contrary to what Boucher and Laborde (2015) appear to think, while all the classic proofs of the existence of God abide by the “laws of logic,” and the laws of logic are certainly partly of a naturalistic conception of reasons and evidence, it is equally clear that they all involve premises that have no standing in logic or in a naturalistic epistemology; thus, these classical proofs are not cases of theistic belief based on the kinds of reasons and evidence operative in common sense and the sciences.

  7. Peter Jones, in his essay “Accommodating Religion and Shifting Burdens.” Criminal Law and Philosophy (2015; doi:10.1007/s11572-014-9328-z) puts it aptly: “there is clearly more to religious belief than the evidence obliges us to believe. If there were not, religion would not be a matter of faith.”

  8. Boucher and Laborde (2015) appear to doubt that Peter Railton’s kind of naturalistic moral realism is really naturalistic, suggesting that counterfactual claims about one’s psychological states are immune to empirical evidence. I have no idea why they think this, though perhaps it is because they think that naturalists have reason to disregard the cognitive sciences.

  9. P.F. Strawson, “Ethical Intuitionism.” Philosophy 24 (1949): 23–33.

  10. I note that their account of non-cognitivist expressivism is not entirely satisfactory, but the details do not matter for purposes of the issues here.

  11. The strongest case could be made for the Stoics, but even in that case it is doubtful that Stoic imperatives are categorical, and the Stoics certainly do not understand them to be insulated from naturalistic reasons and evidence.

  12. Nagel, unsurprisingly, badly misunderstands Nietzsche, who does not believe existential consolation of the kind religion aspired to is possible. See generally, my “The Truth is Terrible,” in Nietzsche on Morality and the Affirmation of Life, ed. Daniel Came (Oxford: Oxford University Press, forthcoming). On the implausibility of Dworkin’s views about the objectivity of value, see my “Objectivity, Morality, and Adjudication,” reprinted in my Naturalizing Jurisprudence (Oxford: Oxford University Press, 2007).

  13. Indeed, I acknowledge that “philosophical reflection” could be a source of existential consolation (WTR, p. 62).

  14. Contrast Catholic existential consolation: death is not really death, just passage to another life, where all those who survive the deceased will again be reunited with him.

  15. How categorical the demands really are should be considered in light of Nagel’s extraordinary response to the arguments of G.A. Cohen: “I have to admit that, although I am an adherent of the liberal conception of [justice and equality], I don’t have an answer to Cohen’s charge of moral incoherence. It is hard to render consistent the exemption of private choice from the motives that support redistributive public policies. I could sign a standing banker’s order giving away everything I earn above the national average, for example, and it wouldn’t kill me. I could even try to increase my income at the same time, knowing the excess would go to people who needed it more than I did. I’m not about to do anything of the kind, but the equality-friendly justifications I can think of for not doing so all strike me as rationalizations …” Nagel, “Getting Personal: Why Don’t Egalitarians Give Away Their Own Money?” Times Literary Supplement (June 23, 2000), p. 6. This strongly suggests that the moral requirements of the liberal, egalitarian view that Nagel endorses are more akin to advice than categorical requirements.

  16. I note that Jones agrees with me on this score, and he makes a strong case that even “indirect discrimination” law cannot be subsumed under principles of equality or distributive justice.

  17. In their note 46, Boucher and Laborde (2015) note the possibility that, as I believe, “toleration provides the moral foundation of religious liberty,” but suggest instead that it is “more likely that religious liberty is the moral foundation of toleration.” I find this perplexing, and it is not made clearer by the observation that, in the Rawlsian Original Position, contracting parties care about “their freedom of conscience” (emphasis added).

  18. This is one reason moral and political philosophy is mostly irrelevant to practical life.

  19. Frederick Schauer, (2015). “On the Utility of Religious Toleration.” Criminal Law and Philosophy. doi:10.1007/s11572-014-9317-2. Schauer begins his essay by taking issue with the framing of my question as one about religious toleration, though, as I noted in reply to Boucher and Laborde (2015), it is quite natural to frame the question in these terms: if Sikhs ask for the law to permit their boys to carry knives in school, what they are asking for is precisely toleration of a practice of which the state disapproves, and they are doing so on the ground that the practice is religiously motivated. It is, of course, true that my argument supports religious toleration, as Schauer notes, but that is because I endorse the utilitarian and deontological reasons supporting liberty of conscience, not toleration of religion qua religion.

  20. There is a further complication, which is that, as Nietzsche argued in On the Genealogy of Morality, religion tends to make the suffering worse off in new ways, by instilling in them crippling guilt and self-loathing.

  21. Schauer thinks, mistakenly, that my focus on “principled toleration” rules out the kinds of utilitarian considerations he wants to press (see Section VII). By principled toleration, I mean only toleration grounded on moral considerations, whether utilitarian or deontological. That is quite compatible with, as Schauer puts it, taking account of the “irrational features of the actual world” in performing the utilitarian calculus. Indeed, since a recurring theme in my book is that religion is hardly unique in involving false and unwarranted beliefs, I would scarcely be in a position to complain if the utilitarian took that into account! But, for the reasons given in the text, I still do not see that this concession justifies biting the speculative bullet.

  22. Corey Brettschneider, “Equality as a Basis for Religion Toleration: A Response to Leiter,” Criminal Law and Philosophy (2015).

  23. See Corey Brettschneider, When the States Speaks, What Should It Say? (Princeton: Princeton University Press, 2012).

  24. See my Nietzsche on Morality, 2nd ed. (London: Routledge, 2015), pp. 241–243.

  25. 406 U.S. 205 (1972).

  26. Brettschneider confuses, I fear, my conclusion that the French ban on conspicuous religious symbols in the public schools was a case of impermissible intolerance (see WTR, pp. 114–115) with the claim that the French state cannot endorse secularism.

  27. See, e.g., Hosanna-Tabor v. EEOC, 132 S. Ct. 694 (2012).

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Leiter, B. Reply to Five Critics of Why Tolerate Religion? . Criminal Law, Philosophy 10, 547–558 (2016).

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