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The Peculiarity of Religion and Its Legal Consequences

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The Peculiarity of Religion and Its Legal Consequences The Peculiarity of Religion and Its Legal Consequences Luke Golemon Abstract Attempts to qualify or disqualify religious claims of conscience from the legal (or even moral) realm usually identify various general features of religion that would count for or against claims of conscience as worthy of legal exemption, should the believer's convictions and the law conflict. I will show that most of the attempts to pinpoint what makes religious claims of conscience peculiar fail, and identify what is peculiar to religion that can ground the disqualification of religious claims of conscience in the American legal system. Religions are concerned mainly with religious belief, not with the evidence for that belief. By allowing \what is foolish in the world to shame the wise," they give up the ability to demand good reasons from their followers. This is what is strange about faith: is explicitly apathetic toward reasons and evidence. 1 Introduction There have been a number of attempts to qualify or disqualify religious claims of con- science from the legal (or even moral) realm.1 They usually identify various general features of religion that would count for or against claims of conscience as worthy of legal exemption, should the believer's convictions and the law conflict.2 The public and Congress took a stand on this issue after the incredibly unpopular Employment Division v. Smith decision, passing the Religious Freedom and Restoration Act, which upped the level of scrutiny that judicial courts must use in order to allow a state to override their religious citizens' consciences.3 This position has been increasingly criticized, but I will show that most of the attempts to pinpoint what makes religious claims of conscience peculiar fail, and identify what I think is a peculiarity of religion that can ground the disqualification of religious claims of conscience in the American legal system.4 First, I will give some necessary background and an example of an attempt that fails. Then, using the failed attempt as a template, discuss other possibilities that might 1For book-length projects of this nature, see (Leiter, 2014), (Greenawalt, 2006), (Nussbaum, 2010), and (Corvino, 2017). 2These attempts come at a time when sentiment for non-believers in America is still low. Tolerance for atheists has not increased at near the same rate as for racial and religious minorities (Edgell, 2011). 3Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990); (Laycock, 1993) 4For criticisms, see (Hamilton, 2015), (Volokh, 1999), (Corvino, 2017). For support, see (Laycock, 1993), (Corvino, 2017). 1 do the same work. After showing that these fail, I will present my own proposal for grounding the disqualification of religious claims of conscience and defend it from the objections that brought down previous attempts. Finally, I will consider objections that would be unique to my proposal. 2 Religion and Claims of Conscience Before we begin talking about the interaction of law, morality, religion, and conscience, let's look at some definitions of religion and the principle of claims of conscience. Con- sider the following principle: P1: If a particular law would cause a person to go against their conscience, then we should grant the exemption to the person whose conscience is af- fronted. If this principle were to be put into practice, we would have several problems that would lead to blatant civil disobedience. We have no way to test for sincerity, nor does it give any room for other considerations that might overwhelm one's right to a consci- entious exemption. It is very important that we have strong limitations; in particular, it seems that we would want to include (i) a sincere belief and (ii) good reason(s) for holding that belief.5 We will use the following, modified principle to accommodate these limitations: P2: if a particular law would cause one to go against one's sincerely expressed and well-supported conscience, then we have a prima facie reason to grant an exemption to the person whose conscience is affronted.6 The strength of this prima facie reason will vary, and can be overridden by costs, investiture or interest of the state, necessity, non-minimal third-party burdens, or any number of other reasons.7 There are still problems related to sincerity, e.g., when or 8 how to test for it, but this principle should fare much better than P1. Now that we have given a good principle for moving from conscience claims to ex- emptions, we can briefly consider the nature of religion for the discussion. Due to the 5In this paper, \good" reasons are just reasons that are not bad ones. The class of bad reasons include repetition of the belief, irrelevant reasons, reasons that stem primarily from anti-government sentiment, and so on. 6Well-supported conscience just means that one has good reasons for their conscientious beliefs. 7Reynolds v. United States. 98 U.S. 145 (1879) "to permit this [exemption] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Further discussion on what will override the principle's weight can be found in Greenawalt p. 12; Corvino p. 11-13, 20-22, 43-45; Koppelman and Gedicks. \Is Hobby Lobby Worse for Religious Liberty than Smith?" Social Science Research Network Journal, 15 Mar. 2015. 8Greenawalt discusses issues of sincerity further in Greenawalt p. 72-74, centered around the use of Peyote in Native American rituals in various Supreme Court cases (see Employment Division v. Smith, 494 U.S. 872 (1990) and Leary v. United States, 395 US 6 (1969)). 2 number of purported religions in the world, it is very hard to come up with necessary and sufficient conditions for religion without leaving out one or another.9 Instead, I will posit a common definition and identify a few key attributes that religions have from it: \Religion is constituted by a set of beliefs, actions, and experiences, both personal and corporate, organized around a concept of an Ultimate Reality which inspires worship or total devotion."10 The relevant features for this argument are (1) religions demand some categorical action as well as belief,11 (2) religion can concern an individual or a group,12 and (3) religion demands total devotion to whatever is and flows from the Ultimate Reality at its center. While (1) above is not contentious, some issues related to it are. It seems like the definition given so far is too broad; a mere moral system like a robust deontology might qualify as a religion!13 Herein lies an opportunity: if one can come up with a way to distinguish between morality and religion and match our intuitions about religion and moral systems, then that will be a robust definition indeed. Just what that necessary condition will be is controversial; moreover, what is chosen will greatly affect how the legal system should interact with it.14 Consider one attempt in this project, one undertaken by Brian Leiter in his book Why Tolerate Religion? He thinks the necessary distinguishing factor is that religious beliefs, properly understood, are \insulated from reasons and evidence."15 This is drawing on our ideas of faith in our American culture, which is often interpreted as belief without evidence or even belief despite the evidence.16 Consider the Young-Earth Creationist. It is unlikely, the thought goes, that one will convince them with appeals to any amount of scientific evidence. And although Ken Ham presents \scientific evidence" for a young earth, he and his organization has 9For purposes of this paper, I will not entertain the extensive debate in the literature surrounding what a religion is. 10Peterson et al, Reasons & Religious Belief, 4th ed. Oxford University Press. 2009. 11Leiter, p. 34; Witte, John. Religion and the American Constitutional Experiment, 2nd ed. Westview, 2005, p. 250. 12This is especially important to remember in America, where religion is deeply individualistic. The rise of the \spiritual but not religious" demographic in America is no fluke. 13This has happened in our court system already: \The test of religious belief within the meaning of the exemption in x 6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption." Seeger v. United States. 380 U.S. 163, 173-180 (1965). 14Contrast, for example, the end result of Leiter's Why Tolerate Religion? and Corvino's Debating Religious Liberty and Discrimination. Leiter ends up advocating for the end of all claims of conscience on grounds of religion being insensitive to the evidence and concludes that we should disallow all con- scientious objections, while Corvino identifies religious claims as being a subset of general conscience or moral claims and concludes that we should treat claims of conscience equally. 15Leiter (2014), p. 35. 16For those who advocate for a particular externalist epistemic view, then I recommend modifying \evidence" to \reliable belief-forming processes" or whatever one's epistemic view calls for. The proposal remains unmodified. 3 said explicitly that he would not believe that the earth is any older even if there was no evidence at all to the contrary.17 (emphasis added). This unwavering faith is what Leiter claims is to be expected of all religious beliefs, once properly understood. This is mistaken. Consider the claim again: religious beliefs are insensitive to reasons and evidence. To be clear, the claim is not about whether or not religious believers are sensitive to reasons and evidence for and against these claims.
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