Stanley Fish appears skeptical of some of law professor Brian Leiter’s presuppositions in his new book, Why Tolerate Religion? , which argues that:

[T]here is no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action.

Leaving aside the “standards of evidence and reasoning” line that implies religious “proofs” can or should be evaluated in the same manner as one particular conception of how natural science research should work (a presupposition hardly unique to this argument) what’s perhaps most interesting here is that Leiter argues this because he asserts that “distinctions between [all non-state entities] are finally inessential,” that ”religion is no different from any other ‘comprehensive doctrine,’” in Rawls’ terminology. This, of course, is a marked difference from many other critics of religion, including recent and not-so-recent liberal theorists, who’ve argued that it (and, if we’re being honest, Christianity in particular) constitutes a unique and paramount kind of threat or “poison” or collective ailment to be neutralized by the state. But as Fish summarizes: “Religion, philosophy, morality, therapy, what’s the difference? In Leiter’s argument, they present the same problem for the liberal state.” Historically liberal theorists haven’t seen it that way.

Both the “special threat” argument and the “no difference” take do share similar goals: To bump religion down in public prominence. But the latter seems to be a new, or at least newer, development, and one that may grow in appeal as religion’s social sway fades and incomprehension of it grows. While Leiter claims the particulars of doctrines on grace, heaven and hell, or the character of the moral law make no difference, he is surely aware of at least some of these differences. But he’s spinning a philosophy for a future public that isn’t, or that doesn’t care.

We can and should object to various moving parts in this case. But we should also address the conclusion head-on. It’s been a recurring one of late, and not just in speculative essays (see the patchwork of lawsuits over the healthcare law): What is it about religion that makes it more than just another conscience claim;  distinct from a pacifist draftee; deeper than an “important” piece of civil society patchwork? That, indeed, it stands in completely separate category anterior to all the others? Then how do we convince a court of that?

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