Brian Leiter, Why Tolerate Religion?
Princeton, NJ: Princeton University Press, 2012
208 pages

In the late seventeenth century, the Sikh religion was at a crossroads. Indeed, it was not clear whether it could survive. The Muslim Mughal empire, reasonably tolerant at the height of its power under Akbar a century earlier, had decided to suppress the upstart faith. Guru Gobind Singh became the last of the Sikh living gurus at the age of nine when his father, the ninth guru, was executed at the orders of the emperor. In 1699, a few years after winning a major battle against the Mughals, he created the Khalsa order. On joining the Khalsa, all prior social distinctions of caste, race and even gender were to be eliminated. The Khalsa became the basis of the first Sikh state in the eighteenth century.

Today, the Khalsa are the visibly “observant” Sikhs. As in many such orders in various religious traditions, the inner spiritual meaning of the initiation was to be illustrated by exterior signs: the “Five Ks.” The most noticeable is the kesh, the uncut hair that requires Khalsa men to wear beards and their hair in turbans. The most troublesome for modern secular states is the kirpan, a short sword that initiates must keep on their person at all times for self-defence and, when required, for promoting justice.

Hyperventilating on the internet aside, the North Atlantic West does not today face an existential crisis comparable to the Mughal persecution. But it does face a crossroads. For the first time in centuries, issues of religious diversity and the limits of toleration take centre stage in the West. Traditionally Christian populations have become polarized between those who have become thoroughly secular (the majority outside the United States) and a remnant evangelized by Protestant and Catholic revivalists who bear little resemblance to the establishment clerics of the mid-20th century. Where these two groups are both numerous, as in North America, they do not get along well, and their differences have ignited a “culture war,” now into its third decade.

Moreover, since 2001, Western foreign policy has focused on the challenge to Western security and interests posed by militant Islamists. Mass immigration means every religious tradition in the world has significant representation in western Europe and North America. Feminism and sexual liberalism have increasingly become nonnegotiable commitments of the West, but at best, they are in tension with traditional religious commitments, and at worst, they represent the face of evil and decadence to orthodox believers. Religious diversity is perhaps the most unsettling result of mass migration, and certainly the least susceptible to traditional liberal modes of compromise.

Under traditional liberal assumptions, religious toleration requires that the state enact laws for secular reasons, that everyone obey them and that religion be a private matter. This understanding has been challenged within human rights and constitutional law by the idea that religious believers need exemptions from laws that may have been secular in their intent but interfere with religious practices or doctrines.

The most prominent case in Canada was that of Gurbaj Singh Multani, a devout Sikh and initiate of the Khalsa order. In September 2001, he was a 12-year-old attending public school in LaSalle on Montreal Island. He accidentally dropped his kirpan in the schoolyard. The school confiscated it, but soon agreed with his parents that he could continue to wear the kirpan as long as it was sewn into his clothes in a secure and inaccessible way. However, this decision was overturned by the school board as contrary to the school’s prohibition on the carrying of weapons. The school board’s decision was in turn reversed by the Supreme Court of Canada in 2006 on the grounds that it failed to reasonably accommodate his freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms and section 3 of Quebec’s Charter of Human Rights and Freedoms. This decision sparked almost a decade of controversy about the accommodation of minority religions and the secular nature of the state throughout Canada, particularly in Quebec.

Multani posed an impossible dilemma for a society committed to religious pluralism. Modern states deliver security and justice by insisting on a monopoly of force governed by impersonal laws. Even a country as respectful of individual self-defence as the United States requires that some spaces be weapons-free, and high on the list of such spaces are schools. No one can suggest that the modern state made schools weapons-free out of hostility to Sikhs. But the vow that a member of the Khalsa takes always to carry a kirpan is not a mere interest or preference that can be traded off in the pluralistic give-and-take of politics. It is an oath to God. It seems the secular state must either force some of its citizens to violate commitments of fundamental importance to them for a diffuse and uncertain benefit or exempt those citizens from a common requirement based on beliefs that cannot make sense to the fellow citizens who must take up the corresponding burden.

In Why Tolerate Religion?, Brian Leiter, a professor of law and philosophy at the University of Chicago, asks whether there are any reasons to treat religious and secular conscience differently, when and whether religiously mandated behaviour should get special exemptions from general laws enacted for secular purposes, and how far a state may go in suppressing religious expression to assert its own secularity. He answers that there are no distinctive reasons to respect religious conscience that do not apply to conscience generally. Since he thinks there is no way to give every conscientious objector an exemption from general laws, he holds that there should be no such exemptions, at least when the effect of an exemption is to shift a burden onto those who do not share the objection. He approves of states asserting their secularity, and even of suppressing religious expression to the extent necessary to do so, but argues that France’s practice of banning the hijab (Muslim headscarf) and other overt religious symbols for recipients of state services goes too far.

Leiter’s idiom is English-speaking analytic philosophy, with the strengths and weaknesses of this approach. The strength is a clear and logical argument from first principles: when there are conceptual leaps, they are laid out for the reader to decide whether to jump along with him. The weakness is a lack of historical perspective and a particular lack of sympathy for the religious sense. The result for me is that I agree with Leiter’s principles, but find his application of them sometimes to be too doctrinaire.

A Canadian reader especially will appreciate Leiter’s comparative approach: although he is an American law professor, he uses the Multani case to frame his discussion, and he engages critically but sympathetically with France’s attempt to maintain its system of laïcité (secularism) in light of the increased demographic presence of Muslim minorities.

Leiter opens by setting out the facts of Multani and comparing them to a hypothetical story of a rural schoolboy who inherits a knife from his father and wants to keep it on him at school. Knowing how to handle knives and guns is an important aspect of manhood in the rural culture of the American south and west. According to David Hackett Fischer’s Albion Seed, the folkways of this American backcountry can be traced back to the often lawless premodern borderlands of the British Isles, Ulster and the English-Scottish border. This kin- and honour-centred way of being an English-speaking person carried over to Appalachia, and was reinforced by the Great Awakening of evangelical and often sectarian Protestant fervour, the War of Independence and the Civil War. In other words, these folkways have some historical resonances with the development of the Khalsa. But, much to Leiter’s approval, no Western country would consider this boy’s plea to keep his knife to raise any kind of human rights or constitutional question.

As Leiter notes, the Canadian Charter guarantees freedom of “religion and conscience”, and a number of other human rights instruments speak of both. Yet claims of secular conscience are very rarely considered by the courts (and, if they are, they tend to be subsumed within freedom of expression, rather than freedom of conscience). Requests for exemption from generally applicable laws are almost always based on specifically religious practices and commitments.

Leiter usefully distinguishes among indifference, toleration and respect. As Leiter points out, toleration is by definition grudging: no one would be happy if a neighbour told them, “We tolerate people like you.” Indifference, not toleration, is the appropriate liberal attitude toward the race, ethnicity and sexual orientation of those with whom we share a community. One uncelebrated advantage of indifference is that it can be absolute. A liberal secular state has no reason to care about its citizens’ metaphysical beliefs or ritual practices if they do not affect the public sphere or the rights of others. This contrasts with most premodern states, which could tolerate heretical and infidel views (as Akbar did) but could not really be indifferent to them.

The question of toleration, by contrast, arises precisely when there is a secular or liberal reason to wish a belief or practice were otherwise. The “accommodation” cases, like Multani, therefore raise the question of toleration, properly speaking, since they arise precisely when the secular state has a legitimate reason, by its own lights, to interfere with the practice. Toleration, unlike indifference, cannot be absolute: the secular state has to suppress human sacrifice and perhaps polygamy, certain types of ritual animal slaughter and circumcision.

Leiter successfully argues that there are no reasons internal to the liberal tradition to tolerate (in this sense) religious conscience that do not also apply to secular conscience. He refers to John Rawls and John Stuart Mill, but I believe the principle can be derived more straightforwardly: it cannot make sense to demand that the state be neutral between mutually contradictory religious beliefs and at the same time privilege religion as such over other sources of moral commitment. Any reason for a Catholic to tolerate a Buddhist is also a reason to tolerate a vegan atheist. The United States is a bit of an outlier within the West on this subject. When Dwight Eisenhower said after being elected President in 1952 that “our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is,” he was widely mocked, but his statement seems to have expressed an enduring mindset among the American people. A 2014 Gallup poll reveals that healthy majorities would consider voting for a gay or Jewish president, and 58 per cent would vote for a Muslim, but a bare majority would even consider voting for an atheist. Some of the members of the Supreme Court of the United States think the government can promote religion in general, even if not a specific religion.

Leiter easily shows this approach is not consistent with basic principles of liberalism: whatever toleration the state should extend to religious conscience, it should also extend to secular conscience. His next move is more problematic. He claims that giving everyone who had a secular conscientious objection to a law an argument for an exemption from that law would be unworkable, and therefore defends the “no exemption” rule in the 1990 American case of Employment Division of Oregon v. Smith. In Employment Division, the Supreme Court denied Native American users of peyote in religious ceremonies an exemption from generally applicable drug laws on the basis that this law was not motivated by a desire to suppress their religion. The American Congress reacted by passing the Religious Freedom Restoration Act (RFRA), which requires accommodation of religious practices unless the government has a compelling interest that cannot be met with a less restrictive alternative. This rule is very similar to Canadian constitutional doctrine. Originally the subject of bipartisan support, it has become unpopular among American liberals since it was invoked by evangelical Protestant business owners who objected to paying for certain methods of birth control in the 2014 Hobby Lobby case.

Leiter is right that the RFRA and Canadian religious freedom jurisprudence discriminate on the basis of religion if they allow religious believers to shift burdens onto those who do not agree with them, without giving similar protection to nonreligious believers. At first glance, it seems compelling to say that this is not a rule that could be generalized to everyone with a claim of conscience, and it should therefore be abandoned altogether.

I think Leiter makes two mistakes in his argument at this point. First, he assumes that the relative absence of claims based on secular conscience is a product of legal doctrine, so that if the doctrine were relaxed there would be a flood of such claims, making law impossible. However, it seems more likely to me that the lack of “freedom of conscience” cases independent of religion is due more to the lack of plausible and motivated plaintiffs. If it were otherwise, Canadian law would have confronted the question of when a secular conscientious objector gets an exemption by now.

While Leiter is right to say that allowing exemptions that impose significant burdens on nonbelievers (“burden-shifting exemptions”) is not consistent with the religious freedom of those nonbelievers, he misses the fact that the actual cases usually turn on whether a real burden has been shifted. The early cases in Canada involved paternalistic laws, such as involuntary blood transfusions for Jehovah’s Witnesses, motorcycle and construction helmet requirements for Khalsa Sikhs or Sabbath-closing laws said to protect workers. The peyote ban in Employment Division is similarly paternalistic.

John Stuart Mill famously thought paternalism was never a good reason for a law. The Canadian Supreme Court has rejected Mill’s “harm principle” as a constitutional doctrine, and no doubt other high courts would do likewise. But it is coherent to allow the state to coerce people for their own good when what is at stake is merely preference and convenience, while rejecting such coercion when it offends what is taken to be a categorical moral demand. It is certainly possible that the same logic would be extended to a person who objected to a paternalistic law on the grounds of a plausible claim of secular conscience.

Other exemptions may be justified on the basis that the burden shifted to the majority that does not share the conscientious belief is equalized by other burdens the majority is able to impose just by being a majority. These cases are more difficult because they tend to assume both that there is a stable majority and that minorities with concentrated interests can never get their way. This may have been a reasonable assumption when, for example, in English-speaking North America, an undemanding official Protestantism surveyed a significant Catholic other and insignificant non-Christian alternatives. But it will not do for the 21st century when there is no longer a religious majority to accommodate everyone else in return for recognition of its hegemony.

On the other hand, the idea that everyone should be encouraged to accept give-and-take in the distribution of burdens is a civilized one, and we can hope it will survive. In any event, if the burden shifted is perceived to be too great, current doctrine – whether in Canada, in Europe or under the American Religious Freedom Restoration Act – will not accapt the claim for accommodation.

This leads me to my second complaint about Leiter’s approach: it ignores the details. The school and the Multani parents worked out a compromise: the kirpan would be on Gurbaj’s body, but sewn in such a way that he could not access it. Along with the total lack of evidence of school violence with kirpans in Canada, that solution does not seem to have really shifted a burden onto anybody. The pedestrian compromise demonstrated a civilized pragmatism in contrast to the school board’s ideological and “principled” approach. Indeed, the dissent in the Supreme Court of Canada would have avoided profound questions of religious freedom altogether in favour of a banal administrative law requirement of reasonableness. Leiter ignores the stitches. He makes fun of the Court’s willingness to restrict kirpans in courts and airplanes, but the same solution might not work on an airplane or in a criminal trial.

It might well be argued that the political system is very good at compromising interests. The judiciary, when it purports to deduce its rulings in favour of particular interests directly from the basic values of society, delegitimizes the losers in a way that an (always temporary) political loss does not. The reaction to the Multani decision is a good example of how little the Court is really able to foresee the consequences of what it does, and supports the wisdom of the more restrained judges who would have found for him solely on administrative grounds. But at a broader level, the accommodation legal norm is itself a product of a political process that has been able to maintain more legitimacy among religious minorities than the more logical approach in France. I do not see why the same approach cannot be extended to secular minorities when they have conscientious objections to following the law.

Stitches won’t always do it, and the secular West will sometimes have to insist on its own most basic commitments. Leiter rightly makes us aware that toleration is a virtue we only need when we have reason to be in conflict with one another. But his reluctance to dig into the details of the cases leads him to neglect the possibility that, instead of grand theorizing, those conflicts can usually be resolved with a little common sense.