Religion & Law

Take a look at Brian Leiter's new paper, posted on SSRN, "Foundations of Religious Liberty:  Toleration or Respect?"  Here is the abstract:

Should we think of what I will refer to generically as ?the law of religious liberty? as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of ?respect? and ?toleration.? With regard to the former, I start with a well-known treatment of the idea of ?respect? in the Anglophone literature by the moral philosopher Stephen Darwall. With respect to the latter concept, toleration, I shall draw on my own earlier discussion, though now emphasizing the features of toleration that set it apart from one kind of respect. In deciding whether ?respect? or ?toleration? can plausibly serve as the moral foundation for the law of religious liberty we will need to say something about the nature of religion. I shall propose a fairly precise analysis of what makes a belief and a concomitant set of practices ?religious? (again drawing on earlier work). That will then bring us to the central question: should our laws reflect ?respect? for religion? or only ?toleration?? Martha Nussbaum has recently argued for ?respect? as the moral foundation of religious liberty, though, as I will suggest, her account is ambiguous between the two senses of respect that emerge from Darwall?s work. In particular, I shall claim that in one ?thin? sense of respect, it is compatible with nothing more than toleration of religion; and that in a ?thicker? sense (which Nussbaum appears to want to invoke), it could not form the moral basis of a legal regime since religion is not the kind of belief system that could warrant that attitude. To make the latter case, I examine critically a recent attack on the idea of "respect" for religious belief by Simon Blackburn.

Although I think that Prof. Leiter's conclusion that "religion is not the kind of belief system that could warrant [thick respect]" is misguided (in part because his understanding of "religion" is not mine), I find this paper -- like his earlier piece, "Why Tolerate Religion?" -- kind of refreshing, bracing even.  Like Prof. Leiter, I come away from works like Prof. Nussbaum's new book on religious liberty not sure that any case has (or, given the working premises, could) been made for religious liberty.  Perhaps, as Prof. Steve Smith has been saying for a while, the only solid arguments for religious freedom (that is, for something more than a cost-benefit-based "toleration" of religion) are themselves "religious" or, at least, depend on anthropological and other foundations that we -- even if we are willing to invoke them from time to time -- no longer really accept?

Just a little something to think about over lunch . . .