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October 09, 2008


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Uzair Kayani

This is probably the greatest blog post of all time.

But I do think the "tolerate" language is always misleading. It over-emphasizes the adversarial side of religions over the symbioses that we usually see. I am not aware of any religion that is purely static, dogmatic, or self-sufficient. Religions tend to be inquisitive, and most have been affected by other religions, Greek philosophy, and societal trends. They borrow from each other such things as arguments for the existence of divinities, models for familial and societal structures, and reasons for occasional holidays. However, they don't always cite their sources.

The dogmatic cults within religions (which do only "tolerate" each other, and then only rarely) pose a threat to any society because they often become havens for unreasoning, xenophobic and unstable personalities. I suppose we should tolerate them anyhow, but we should expect them to get us in trouble now and then.

Michael F. Martin

Mr. Leiter stcks the deck with an impoverished definition of religion. He should read some David Sloan Wilson, who has ably demonstrated that religion is both more pragmatic and adaptative than this definition would admit.


“Religious beliefs do not answer ultimately (or at the limit) to evidence and reasons.”

While I agree that the first feature of religious belief may be unique to religion, this second feature has no real bite. Until we get an explanation as to the functioning of evidence and reasons, there is no reason to believe that they themselves do not fit this criterion.

I don't think Prof. Leiter would like to grant that there is no distinguishing between religious beliefs and secondary beliefs about proper reasoning.

And yes, I agree that toleration is a rather weak justification for religious liberty. It may simply be part-and-parcel with our duty not to interfere where we cannot give reasons for interference. Since these beliefs are pre- or extra-rational, we can't give reasons for why they are wrong, and so we mustn't interfere.


What is unique about religion? The answer lies not in logic but in history. Wars are fought over religion. As Madison put it, "The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries."


Hmm. That may be FrankMCook, but that's not really applicable to the issue here, as Religions that have been created after Madison's day with littel historical significance have the same constitutional protections that the classical historical ones do, so long as they are organized or coherent or whatever that weak SC definition of Religion is (It's been a while).

I'm not sure where the comments are going here. The issue is why Religion deserves special constitutional protection whereas other sources of conscience and belief do not. If it was not tolerance in one of the first religiously diverse countries in the world that created the special place for religion in our constitution, what was it then? And whatever the reason, why does it and should it exclude non-religious sources of conscience today from the same constitutioanl protections (or said another way, why tolerate religion as a special source of conscience over all others when it comes to constitutional rights to free exercise?)

It would be nice to find an intellectually honest answer to this question, if one does exist, but I suspect one does not.

Anyone rememebr the criteria by whcih the SC has defined a "religion" worthy of constitutional protection? Maybe the analysis should start there.

Frank M. Cook

You can brush my comment aside, but I stand by it. Religion deserves constitutional protection because of the risk to peace caused by failing to protect it. Perhaps I should put this in the way I put it to Dean Neal years ago ... we Jews look at freedom of religion differently from you Christians because history teaches us that when we didn't have it eventually our ancestors got killed. For us freedom of religion isn't a nice intellectual argument with a possible penalty to be paid in another lifetime. It is life and death. No one every got killed for choosing Coke or Pepsi but every day someone on this planet, perhaps in Iraq, Darfur, or Kosovo, pays the ultimate penalty for belonging to the wrong group.

I might ask why do we have laws against using a cell phone while driving and no laws against using an I-Pod? They are both hand held electronic devices. What is the difference? The difference of course is in the number of accidents that have occurred in the past from each device.

Sorry, I'm just not going to play your intellectual game. Law are adopted to deal with problems. Religion deserves special treatment because history teaches us that we need to do so to maintain peace.

If you insist on trying to get there logically, then back up one step and ask not why we should treat religion differently from other matters of conscious but why throughout history people have been willing to kill each other over these differences. I think the answer lies in the fact that historically religion is tied up in the other differences that we protect: race and national origin. Put in more primitive terms: tribe. Religion like race and ethnicity goes into defining who we are, who is one of us, and who is one of them. The first amendment was the beginning of a declaration completed by the fourteenth that declared that the answer here is that we are all Americans.


FrankMCook, At first glance I'd dismiss your argument and point to the fact that Due Process guarantees any person the right not to go through what Jews have gone through many times before in history (Japanese Americans and certain neo-cons might disagree with this claim for different reasons). Special Constitutional protection for Religion isn't really needed to protect people from oppression in our culture. But on closer examination I think you may be on to something. Perhaps the distinguishing feature of Religion that makes worthy of special protection is the practical reality of the mass group identification in Religions as compared to other sources of conscience. So it's not just the categorical demands and the lack of evidence and reason that define religion, but the fact that large numbers of people subscribe to conflicting irrational belief systems in the first place, for whatever reason, and the potential for large segments of the population clashing over those irrational beliefs can cause big big problems.

Frank M. Cook

LAK said: "Special Constitutional protection for Religion isn't really needed to protect people from oppression in our culture."

Maybe I'm just older than you are and grew up in different times, or maybe you have to be a non-Christian to have experienced religious discrimination in America. I remember my school day starting with a prayer that was not a part of my religion. I remember when major employers in my city like Ford Motor Company and Eli Lilly would not hire Jews. I remember when hotels in Florida had signs saying "No Dogs and Jews Allowed."

LAK said: "At first glance I'd dismiss your argument and point to the fact that Due Process guarantees any person the right not to go through what Jews have gone through many times before in history"

If you were drafting a constitution today and wanted to say that a separate free exercise clause isn't needed because the same right is given by due process and equal protection clauses, you could be right although you'd still have to deal with the need for an establishment clause. I doubt though that you could make that argument in 1787 when there was no equal protection clause, slavery had not yet been abolished, and women had limited rights. Separation of church and state in America begins against the background of the European doctrine of "Cuius regio, eius religio" - which expected everyone in a territory to follow the religion of the ruler. The Puritans founded the Massachusetts Bay Colony because they can not practice their religion freely in England, and in turn Roger Williams led a group to Rhode Island because they could not practice their religion freely in Massachusetts. The framers provided special protections for religion because they knew about state churches. They did not, however, understand "all men are created equal" in the way we do today.


That's fine Frank, but we're getting off topic. Your memories of discrimination happened while there were and are special protections for Religious beliefs above all others in the constitution, so I'm not sure it adds anything to the purpose of this post, or supports the argument that I think you're implicitly making, which is whatever the special protections religion has in the constitution, they should be even more. If anything the history of religious discirmination in our country, despite the constitutional protections in place, probably undermines any argument that Religion deserves those special constitutional protection, as those proetctions further reify completely irrational group identification in our culture, which is the root cause of the discrimination you know.

"If you were drafting a constitution today and wanted to say that a separate free exercise clause isn't needed because the same right is given by due process and equal protection clauses, you could be right"

I think then by saying this you agree that as a matter of legal philosophy, Religion does not deserve any special protections above all other sources of conscience. (I'm confident the establishment clause, unlike the free exercise clause, already applies to any and all sources irrational conscience even if the issue has never come up - a state would run afoul of it if they wrote into law that all must follow the Ouija board or go to jail).

Frank M. Cook

LAK, I didn't intend to argue that we need even more protections for religion than we have today. It's more that I'd be really frightened by any movement to give us less.

As for your confidence that the establishment clause already applies to any and all sources of irrational conscience, that comes really close to my own personal view which I freely admit no one believes in other than myself that there is an establishment clause issue lurking in the abortion debate. If it indeed true that a law saying we must all follow the Ouija board or go to jail is unconstitutional, doesn't the same logic make you wonder about a law that says all Doctors must follow the teachings of the Catholic Church or go to jail? Now I know the Court didn't use establishment clause logic in Roe, but I do think there is some harmony between the social policy of the establishment clause and that behind the more amorphous right to privacy.


Oh absoultely. In fact I've had that debate on this board before, asking pro-lifers to ground their anti-abortion stance in something other than religious doctrine, to rationally justify their policy position without resorting to irrational religious authority. The sliding scale of rights from adulthood to teenagers to children to infants doesn't help their cause, nor does any attempt to ground rights in human functioning. So yes, as a Reform Jew myself who knows that the religion I was born with does not believe life starts until birth, I am acutely aware that most pro-life positions amount to one big establishment clause violation.

As for yor fear of having fewer constitutional protections for free exercise as a Jew, I understand, but submit to you that special constitutional carve outs for religion may ultimately add to religious discrimination, not prevent it

Frank M. Cook

I don't think you'll win many abortion debates when you start by telling your opponent that his position is irrational even though it may be. Nor do I think when life begins should be the issue, and there I have the Roe court opinion to back me up.

The problem with our establishment argument is that it proves too much. Far too much of our law has its roots in morality and religion for us to say that nothing from religious law can be adopted as a civil law. After all for most of a thousand years our Jewish ancestors built an entire legal system for life in the ghetto directly from the Talmud, and we see other cultures building civil law upon the Koran. If we tried to so that no civil law can have a religious counterpart, we'd have no law at all because there is no matter of every day life that is not also covered in religious sources.

Does that bring us back, as always, to law and economics? Is the touch-stone that no religious principle should be forbidden (or mandated) by civil law unless we can attach an economic harm to it? Saving each others souls is not a proper concern of government.


Frank, you're missing the point, it's not about the historical source of the law, religious or not, it's whether you can justify the law now, using nothing but reasoned argument and evidence. Murder should be illegal whether religion historically banned it or not, and it isn't hard to make that case without resorting to the irrational authority of religion. And while economic analysis can certainly benefit such inquiries, there is a lot more to making a good argument than economic data. Take philosophy for instance, what we are supposed to be considering in this post. Evaluating the special place Religion has above all other sources of conscience by filtering the idea through the most important theories of justice and ethics that have been developed in he last 200 years.

Frank M. Cook

but wouldn't the evidence that you are allowing to accompany your reasoned argument include what might be called history?

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