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Why Tolerate Religion?
by Brian Leiter
princeton university press, 216 pages, $45.00

Brian Leiter's Why Tolerate Religion? is a crucial book in the area of law and religion—published in 2013, it defends the view that there is no compelling moral or legal reason to provide special protection to religion as such.

Professor Leiter's main conclusions are:

One, singling out religion is unnecessary. If matters of religious conscience deserve toleration, it is because they involve matters of conscience, not religion per se.

Two, exemptions from neutral laws of general applicability should be available to all conscientious objectors, as long as they do not involve shifting burdens onto others.

Three, religious establishment is compatible with principled toleration.

I agree with the third conclusion, but there are good reasons, good legal reasons, for denying the first two (singling out religion and granting religious exceptions). It is difficult, however, to appreciate them if one reduces religion to just a matter of religious conscience. Secular legal systems should, indeed, protect religion and recognize a right to religion, as distinct from the right to freedom of conscience.

In a secular legal system, a central feature of religions—what I will call their suprarationality—provides the ultimate legal justification for protecting religious exercise.Suprarationality is more than insulation from reason and evidence (which Leiter thinks is a defining feature of religion). Rather it refers to beliefs—and acts pursuant to them—that aren’t defensible by reasoned argument alone nor in conflict with conclusions attainable by reason. It presupposes rationality but goes beyond it. Protecting religion ultimately means protecting human beings’ experience of the suprarational.

Suprarationality justifies the legal protection of religion because it marks a limit of the proper domain of any secular legal system. It allows that there is something more to existence than what law can reach. The legal system, after all, operates within the realm of the rational. So it should be limited to policies it can justify in rational terms. Legal systems, then, have no business regulating or discounting the suprarational. In fact, they have affirmative reasons not to interfere in or dismiss the suprarational. In this sense, suprarationality operates as an external and a constitutive limit of the secular legal system. It would clearly be a transgression of the limits of the legal to command or forbid acts that are suprarational in nature.

Suprarationality as a limitation has three important legal consequences: (a) suprarational acts in the strictest sense should never be validated as legal acts: a secular legal system should never impose or require particular suprarational acts; (b) suprarational argumentation should not be used in legal discourse; and (c) the secular legal system should not regulate the essentials of any religious community. The three consequences together are expressions of the natural incompatibility between legal coercion and suprarational freedom.

The right to religion thus establishes a constitutional limit on governments by protecting the human person against political coercion. The right to religion is different from freedom of conscience. Conscience is a sort of protective shell around people’s privacy: it safeguards them from abusive intrusions by the law. Conscience marks a private limit of the legal system, not a public one. Morality, however, cannot remain completely outside the legal system since the secular legal system cannot be wholly non-moral. This explains why the practice of one's morality can be allowed only to the extent that it does not contravene the public morality derived from the legal system. This also explains why the scope of the right to religion is different from—it is in this respect wider than—the scope of freedom of conscience.

The right to religion demands toleration; freedom of conscience demands accommodation. Let me explain this distinction. Toleration means suffering the consequences of others having and exercising rights. It is the minimum respect required by a legal system in relation to the rights of others protected by the same system. One must tolerate the rights of others because the secular legal system must guarantee—it must itself not tolerate—the infringements of rights. So, if there is a right to religion, everybody must tolerate religious exercise.One can fiercely oppose, as I do, the individual right to bear arms, but all American citizens and residents must tolerate its exercise so long as the U.S. legal system recognizes it. Just so, one can furiously oppose religious manifestation on the ground that religion poisons political society; but one must tolerate religion as a citizen of a political community ruled by a secular legal system, where religion is a matter of right.

The appropriate form for the protection of private morality in the public realm, by contrast, is not toleration but accommodation, for there is no constitutional right to practice one's morality in the public realm as there is one to practice religion. Accommodation is not a matter of rights in the strictest sense; it is a matter of prudence and wisdom in the application of the law. Accommodating private morality is a way of practicing solidarity in political communities based on human dignity. By accommodating private morality, legal systems promote social cohesion, since they turn individual claims into shared objectives.

The degree of accommodation appropriate in each case depends on the constitutional model of the legal system in question. A legal system that puts special emphasis on the principle of equality will practice accommodation differently from one more sensitive to the principles of freedom and solidarity. The right balance also depends on other factors, such as the degree of the violation of the norm that someone wishes to have accommodated, or the compatibility of the permission of the action and the end of the norm or standard in question. There is no ground for banning accommodation if a legal system is able to accommodate a certain conscientious objection without risking its own integrity or causing harm to other citizens.

Secular legal systems should carefully make a distinction between religion and conscience; rationality and suprarationality; private and public morality; toleration and accommodation. These concepts and ideas provide a coherent constitutional framework for the protection of the rights to religion and freedom of conscience.

Rafael Domingo is Professor of Law and ICS Research Professor at the University of Navarra, and Francisco de Vitoria Senior Fellow at the Center for the Study of Law and Religion at Emory University.

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