Episode 15: Brian Leiter discusses religious toleration
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What is the central question of Brian Leiter’s “Why Tolerate Religion” paper?
Hello and welcome to Elucidations, a philosophy podcast recorded at the University of Chicago. I'm Matt Teichman. And I'm Mark Hopwood. With us today is Brian Leiter, John P. Wilson Professor of Law and Director of the Center for Law, Philosophy and Human Values at the University of Chicago. And he's here to talk to us about religious toleration. Brian Leiter, welcome back to Elucidations.
Thanks very much for having me again. I'm looking forward to it.
So I thought we might begin by asking about a provocatively titled paper of yours called Why Tolerate Religion. Is that to suggest maybe that religion shouldn't be tolerated? Or um Yeah. Where where do we go from there exactly?
Right. So the the paper which appeared in a journal called Constitutional Commentary in two thousand eight, called Why Tolerate Religion, was titled to provoke, but its answer was much more mundane in many ways. The the question I was actually interested in uh was whether there was any reason to tolerate matters of religious conscience as distinct from other kinds of matters of conscience. So the ultimate answer to the question is yes, of course, there's lots of reasons to tolerate religion, but there aren't any religion-specific reasons for doing that. The reasons for thinking that the law should provide special protections for liberty of conscience are good and compelling reasons. What struck me is that if you look at, say, all the Western constitutions, they all single out religious
conscience for a special kind of protection. The Canadian Charter mentions liberty of conscience. Some of the uh the European ones mention liberty of conscience, but all the litigation, all the decisions is about claims of religious conscience. And we know what the historical reason for that is, right? That is we know about the catastrophes that grew out of religious conflict in Europe that led people to think it was really important. To bring these kinds of conflicts to an end. I wanted to ask sort of a moral philosopher's political philosopher's question about this. That is, if we were starting de novo, right, drafting a new constitution, would we want to follow the lead of all these constitutions in terms of saying religious conscience is special in a way that other matters of moral conscience aren't special?
And the conclusion of the paper is no, there is nothing special about matters. Of religious conscience that should lead us to think that the law should provide a special kind of protection for that those forms of conscience as against any other.
So your view is not that in fact religion does not deserve toleration, but simply that there's no special reason to tolerate religion over and above any other matter of conscience. Why is that exactly? As you've said, the tradition sees religion as a special case. This is a very widespread moral and legal view. So on what basis do you challenge that?
I think to answer the the question that that I try to pose here, we do have to say something about what's distinctive of religious conscience, matters of religious conscience, to figure out whether the best moral arguments for toleration of conscience or the best moral arguments for liberty of conscience would be especially concerned with matters of religious conscience. So one part of my project is to go down the road that philosophy And especially courts and legal scholars hate to go down, which is trying to say something about what's distinctive of religion and matters of religious conscience. But it seems to me unavoidable for trying to answer the question that I've posed. So my proposal is that we can think of religion, religious belief, as being distinguished by two characteristics.
And I think it's very important. In this regard, not to tie it up with theism. Because for one thing, and the courts have sometimes moved in this direction, but there are religions that are not theistic in the Judeo-Christian sense, right? Yet surely they have to count as religions for purposes of figuring out what are matters of religious conscience.
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Chapters
8 chapters
1
What is the central question of Brian Leiter’s “Why Tolerate Religion” paper?
0:19–4:31
2
Why does Leiter argue that religious conscience is not philosophically distinct from other conscience claims?
4:31–9:40
3
What two characteristics does Leiter propose define religious belief?
9:40–14:11
4
How does the “John Lennon” thought‑experiment illustrate non‑religious categorical convictions?
14:11–17:52
5
What is Martha Nussbaum’s critique of toleration and how does she shift the focus to respect for conscience?
17:52–22:42
6
How does Leiter distinguish between recognition respect and appraisal respect for conscience?
22:42–27:13
7
What would legal doctrine look like if religious conscience were treated no differently from other conscience claims?
27:13–31:38
8
What are the practical challenges of extending or removing conscience‑based exemptions in law?
31:38–36:26
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