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 § 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. It would be absurd to claim that every religious believer is insensitive to reasons and evidence. Instead, Leiter simply thinks religious believers, if they understood the nature of their claims, would hold that their religious claims are not sensitive to evidence. But it isn’t at all clear why the following religious claim isn’t sensitive to reason and evidence:

Y1: The earth is six thousand years old.

After all, we could point out empirical findings about the age of the earth just as we would to the scientist advocating for a young earth.18 As Michael McConnell says, “[Leiter is] stacking the deck by assuming that religious belief ‘always’ is to some degree ‘false, or at least unwarranted.’”19 How, then, are we to understand that religious claims, properly understood, are insensitive to reasons and evidence? Perhaps, as Leiter insinuates in another part of his book, it simply isn’t rational to believe any religious claims. But again, this requirement is too strong.20 Consider:

Y2: One should feed the hungry when one can.

This claim seems eminently rational, but is also a common religious belief of Chris- tians, among many others. Sure, there are cases in which it does not hold, but distribu- tive justice cases can be put to the side here. This claim is no different than other claims

17Gitt, Werner. “1.3 The Basic Assumptions of Creationism.” Answers in Genesis, 10 May 2012. “The basic principle of creation is taken for granted. An understanding of the original creation can only be obtained through a biblical “temper of mind.” Biblical revelations are the key for understanding this world. The Bible is the basic, irreplaceable source of information. It is a fact of creation that we may not extrapolate the currently valid natural laws into the six days of creation. Our present experiences do not allow us to really evaluate something that has just been created” 18Perhaps it’s because the Young-Earth Creationist’s claim isn’t properly understood. We are leaving out God’s commanding or revealing that this is so. Now the claim is entirely different:

Y3: God has revealed that the earth is six thousand years old. But even this formulation seems sensitive to evidence. I can still give evidence along the lines of “The likelihood of God revealing this as truth when we have so much scientific evidence for its truth is very small,” which is a very good reason for rejecting Y3. 19McConnell, Michael. ”Why Protect Religious Freedom?” Review of Why Tolerate Religion? by Brian Leiter. Yale Law Journal 123, no. 3 (December 2013): 770-811. November 2, 2017. p. 786. See Leiter’s reply at Leiter, Brian. “Why Tolerate Religion, Again? A Reply to Michael McConnel,” U. of Chicago, Public Law Working Paper No. 580. 2016. 20Leiter (2014) p. x, 77.

4 in a deontic moral system; calling those who believe deontic moral systems are correct irrational would be a very strong claim indeed.21 What, then, could this faith requirement be? I will answer this below with an analogy before explicitly stating my proposal. In his recent book Against Democracy, Jason Brennan argues that democracy is unjust and a certain kind of epistocracy would fare better.22 He argues that democracy fails our ideas about who can make decisions that affect our lives in profound ways; specifically, he thinks that we should not entrust these important policy decisions to the uninformed, uninterested, and so on.23 Their ignorance ensures that it is unlikely that the best policy will actually be chosen and has trouble actually enacting the outcomes that the population wants to see. An epistocracy, or government by the experts or the competent, would eliminate this injustice by putting those who know what results we want and how to achieve them in charge of those very projects. One way to argue this is to point out an oft-unreflected policy of democracy: disallowing young folks voting rights. Despite widespread historical acceptance of something like this policy, advocates of democracy aren’t prepared to accept the logical consequences of doing so. After all, there are sixteen- and seventeen-year-olds who are competent, independent, and are full members of society that are disallowed from voting, which is an injustice. But to allow them, we would have to disallow others among us who are not competent enough to vote, like poor, uneducated black women.24 This is obviously a horrifying result, one that would warrant rejecting its foundation on this alone. After demonstrating this horribly racist result to show the inconsistency in our cur- rent system of democracy, Brennan does not address how epistocracy could better ad- dress it.25 Epistocracy, as it usually stands, must also suffer this same injustice. The

21Another way to think of the religious claims might be to think they are obviously false, which is also defeated by Y2. But a more moderate generalization might be to say that religious claims are generally or mostly false. This might be true due to the number of competing and contradictory religious beliefs; even if one set is true, it would entail so many false religious claims that it could not hope to quantitatively compete. This moderate analysis of the final condition to religious claims fails to help us much. We don’t know which, if any, religious system is true. The American government certainly won’t be taking a position on it. Even if we took a claim to be true in court that contradicts a relevant religious claim of the plaintiff, it is unclear that we can proceed over their claim of conscience anyway. Consider the belief that a high school education will make one a better citizen, an issue that the state has a vested interest in. This directly contradicts the Amish’s idea of a good citizen. When this issue spilled over into court, the court ruled that the Amish community could take their children out of school after completing the 8th grade despite the state’s interest in its citizens receiving higher education (see Wisconsin v. Yoder, 406 U.S. 205 (1972)). 22Brennan, Jason. Against Democracy. Princeton University, 2017. 23Brennan, p. 141-142. 24Id. p. 148. In order to allow those under the voting age to vote, we would have to have some competency test. Reflection will tell us that any competency test will do two things: first, it will cut out some of those over the age limit, leaving them without votes. Secondly, it will more often be minorities than not, leaving us with a system scarily similar to the racist literacy tests of the past. 25Brennan does address how one might mitigate the effect, but not in a way significantly different than democracy. For my purposes here, I can grant that Brennan can show that a certain form of epistocracy is better, but the point is not whether or not a particular epistocracy fares better than democracy. The

5 difference is just that epistocracy admits that this is the logical conclusion of the argu- ment that we, in fact, should accept. But this is usually enough to put one off of this form of epistocracy altogether. Under this conception, epistocracy simply doesn’t care if it is racist or discriminatory against the poor. We think that governments should be concerned with racism and the poor, however. I propose calling this sort of problem explicit apathy. X is explicitly apathetic toward Y when X does not regard Y as important or relevant to the implementation its goals. Epistocracy is explicitly apathetic toward racism because epistocracy simply does not care if it ends up being racist in effect in pursuit of its governmental goals. Consider, for example, Rawls’ thought experiment regarding the veil of ignorance.26 We can conceive of how this explicit apathy toward racial equity would not pass muster. Any of us could end up being a person of color beyond the Veil, and thus we would demand that the social contract oriented properly to reflect this. Any system which is blatantly racist would be rejected, but also systems that might not be explicitly racist and yet nevertheless do not regard effective racism as a reason to reconsider.27 I further propose that the last necessary condition of religion that will distinguish it from the realm of morality is one derived from faith. Leiter was pushing at something peculiar about religion that most people recognize, but exactly what about faith that is problematic here is hard to pin down. With the terminology obtained from the preceding discussion of Brennan’s Against Democracy, we now have tools to do so. Religion, I argue, is explicitly apathetic toward reasons and evidence. This is not to say religious folks can’t be rational, that religious folks are not often rational, that religious folks often don’t have good reasons for their beliefs, that religious claims are insensitive to the evidence, nor that religious folks are insensitive to the evidence, nor that religious claims are false (particularly and generally), nor that religious folks aren’t concerned with the evidence for their beliefs (religious or otherwise). It is just to say that religion simply does not care if its claims have reasons and evidence in their favor or that its believers have access to them. In other words, I think that Leiter is correct that there is something peculiar going on with religious believers and the subject of their belief, but I think he has made a category error. Leiter located this peculiarity either in the beliefs themselves or the believer, all interpretations of which turn out false under my earlier examination. I argue that the peculiarity is to be found in the institution and its decisions about who can be a member. point is how this particular form is not adequate in a relevant way to the paper. 26Rawls, John. A Theory of Justice. Belknap Press of Harvard University Press, 1999. p. 118. The idea is that we should craft our policies such that, were we to be perfectly rational and totally removed from our current position, we would all agree to them. Due to this total removal from our current position, we would not agree to allow racism or other such societal issues because we would not know if we would be a victim or a perpetrator of such violence. 27As a semi-relevant aside, Rousseau, Rawls’ philosophical predecessor, had radical views on religious liberty. He proposed that all religion be abolished for a new ‘civil religion’ that would bind the faith of men to the State. See Rousseau, Jean-Jacques. The Social Contract (1762). Trans. Maurice Cranston. London: Penguin, 1968. p. 179-181.

6 Take the example of Eve, the non-evidentialist regarding religion, who never thinks of evidence and reasons as something that could apply to religious beliefs. She applies reasons and evidence to her other beliefs in the normal ways, but fails to even consider applying these evidentiary standards to her religious beliefs. Can this person count as a member of her chosen religion? It seems like the answer is clearly yes. This is the trade-off that religion makes when it values faith: it allows those who make no inquiry or even make inquiry and come to these beliefs for the wrong reasons to its members.28 The cost of this inclusiveness is this explicit apathy to evidence. Why would explicit apathy be a problem? There are two broad answers to this question. One answer might be to say something like we said to Brennan’s epistocracy described before: organizations issuing categorical commands should care about the reasons their adherents give for believing, or at least care that they have reasons at all. An alternate approach would be to say that adherents to any belief system that issues categorical commands should care about their reasons for believing that system. Else we would have nothing to say to someone who whole-heartedly endorsed what appears to be a contradictory or otherwise completely unmotivated position! Consider again how this would fit in the veil of ignorance. Would we want to allow people the ability to appeal to non-evidential explanations when petitioning for legal exemptions? It seems clear that we would want everybody to give relevant reasons for why they believe, else we would be stuck in a state of widespread civil disobedience!29 Ponder the secular pacifist, like Welsh or Seeger, who writes a long essay on the sociology and damaging effects of war, who speaks of just war theory, injustice, and his willingness to go to prison rather than serve in the war.30 Contrast this with the typical religious objector at the time, who merely need write “I am a Quaker.” Does it not seem unfair? Does it not seem as though Welsh is more deserving of the exemption than the Quaker? Now if the Quaker had written the same essay as Welsh, we should think they are equally deserving, even if the Quaker added that he or she was a Quaker at the end. This only emphasizes that religion seems somewhat irrelevant as a reason, much like someone else who simply believes fervently from birth to present that war is always bad, with no additional reasons. Putting down as his reason that “I’m a pacifist,” would just not do. A second way to answer this question would be problems that arise later down the road. Religions are known by their belief systems and their demand of adherence. When Congress and the Court system thought about exemptions for pacifists, what came to

28There are some kinds of reasons that a religion will disallow, such as coming to those beliefs because you were bribed. However, they will rarely (if ever) turn someone aside who joins a religion because they think life without an afterlife is meaningless. 29Corvino p. 22-45. 30Seeger v. United States. 380 U.S. 163 (1965); Welsh v. United States. 398 U.S. 333 (1970). Both cases ruled that the plaintiffs counted as religious for the requirement conscientious objector, widening the construal of religious in the judicial and legal field. McConnel argues that this is a bit of a mistake from an originalist point of view, since the original intent behind freedoms of religion was to protect duties from a creator, as expressed by Madison. See McConnell, Michael. “Why Is Religious Liberty the ‘First Freedom’?” Cordovo Law Review 21, no. 4 (February 2000): 1243-66, p. 1251.

7 mind were Quakers and other historically pacifist churches.31 But now we run into a problem: if all religious exemptions are merely a certain kind of conscientious exemption, then we must demand an explanation of why one believes such a thing. Answers like “wishful thinking,” “no reason,” or “I don’t want to do what the law says I must do,” are simply not going to count as good reasons for giving one an exemption. But when S answers that she believes P on the basis of religion R, many view this as an acceptable reason. My argument implies that it is not. Under the proposal at hand, appeals to religion become simply a repetition of “S believes P,” or some other unjustified answer. When we ask a plaintiff petitioning for conscientious exemption what reasons they have for believing P (which, we will stipulate, is a belief that contravenes some law L), we want a reason that is linked in appropriate ways to evidence of some kind. Giving religious adherence as an answer implies one of two answers: (1) they are saying that a religion has issued a categorical command to believe P, in which case this is tantamount to repeating that one believes P, or (2) the answer is being pushed back, and given religion’s faith feature of explicit apathy toward reasons and evidence, we cannot give this an explanatory role. In order to play an evidentially explanatory role, it must be relevantly connected to the issue at hand, but any system that is explicitly apathetic to evidence and reasons (like wishful thinking, for example) is not able to do so. This is key: because religions are explicitly apathetic to the evidence, they cannot play an explanatory role in why their adherent believes it. They can certainly provide sincerity verification to a degree, but this is not sufficient in most cases, as I will show later. This has immediate effects for our attitude toward religious conscientious objections. I and others have given good reasons for thinking that other attempts of revealing a special nature to religion have failed32 and given that we have good reason to think it is different from normal claims of conscience because it is explicitly apathetic toward evidence and reason, we can conclude that religious conscience claims are not supported in such a way that we can admit them without other evidence that would qualify as sufficient for a claim of conscience on its own. In other words, it’s not clear why we should respect religious explanations at all when used in support of S’s belief in a conscientious exemption case. Now that I have given the background and my proposal, I am going to quickly summarize before moving on to possible objections. When we talk of conscientious objections, we require reasons for why one is object- ing. There are certain kinds of reasons that we don’t accept, including repetition of belief, belief without reasons, belief for irrelevant reasons, or belief for other unaccept- able reasons (like anti-governmental sentiment or wishful thinking). We currently allow conscientious objectors to appeal to their religion as an explanation for why they hold

31Interestingly, Quakers do not require pacifism of their adherents, though their adherents are of- ten pacifists. This only complicates the problems of attempting to solve the problem of conscientious objectors by limiting it to religious groups one knows are historically pacifist by doctrine or dogma. 32By special nature, I mean a special nature that would lead to religion receiving special positive treatment. For other treatments of religion regarding special natures, see Corvino, p. 32-33; Leiter (2014).

8 the belief that contravenes the law.33 When we look at what explanatory role religion can play, however, we find that they can only provide verification for sincerity rather than any evidential role in the belief. This is because religions are explicitly apathetic to reasons and evidence; that is to say, they don’t care at all about reasons and evidence when it comes to the motivations of their adherents. Because they will accept someone whose approach to religious beliefs is completely non-evidential, because they want to claim that “God chose what is foolish in the world to shame the wise,”34 the religious nature of these beliefs cannot play a relevant role in the context of a conscientious ob- jection. Therefore, appeal to religion as an explanation becomes a reason of repetition or a reason of explicit apathy with regard to reasons and evidence, both of which should be disallowed as a reason to get an exemption from a law.35 Here is one objection to the above that will help clarify the position. Suppose that Eve is a Catholic, and the Catholics often have very well-thought-out reasons for the moral positions they take in their tradition. Eve does not consider any evidence when she became Catholic, but objects to a particular law on the basis of a violation of conscience. When asked for her reasons, she presents the Catholic reasoning on the matter. Because the Catholic reasoning is good reasoning in this case (not irrelevant, a repetition of belief, etc.), this reasoning can be accepted. This seems to be a reason to think that religion can play an explanatory role in conscientious objections. But this is not quite what is happening. Her Catholic faith is not an explanation in and of itself, it simply led her to the reasoning that they espouse. The reasoning they give is sufficient on its own to secure an exemption in this case, the fact that it was Catholic reasoning plays no role in it. Imagine a similar situation, but instead of Eve’s reasons for objecting to the law at hand being sufficient on its own to secure exemption, imagine it instead relies on appeals to divine revelation directly to the Church through an ecumenical council, and from the Church to its adherents. This does not seem to be a relevant reason. This seems to be a repetition of belief: Eve, an adherent of the Church, holds this belief because the Church promulgates that its adherents should believe it. In sum, there are three ways an appeal to religious belief can result: (1) the appeal is a repetition of belief, (2) the appeal is an appeal to a system of reasons that are explicitly apathetic to the evidence, and (3) the appeal is sufficient on its own to succeed but is nevertheless attached to a particular faith by the plaintiff. (1) and (2) would fail, but (3) would succeed. A further objection might be to say that explanatory answers don’t matter, just the

33See, for example, Sherbert v. Verner, 374 U.S. 398 (1963). Sherbert, a Seventh-Day Adventist, was forced to choose between her religious convictions (not working on Saturday) and her ability to provide for herself financially, as her employer had recently extended the week to six days (Monday-Saturday) from five. When she applied for unemployment, she was denied, citing available work that she turned down. The Supreme Court overruled this 7-2, ruling it an unconstitutional burden on her free exercise rights. 341 Corinthians 1:27, ESV. One can even see the effects of this attitude in some of the more extreme sects of Christianity, in which the scientific community’s refusal to acknowledge Young Earth Creationism as a possible theory is seen as a fulfillment of Paul’s words here. 35See (Leiter, 2014).

9 sincerity of the objection to the law. When one considers the unwillingness and uncon- stitutionality of courts and congress ruling on the truth of religions and religious claims, it seems that all we are left with is how sincere someone’s objection is. Because religious claims can serve as a verification of sincerity as I conceded earlier, it seems that religious claims are uniquely positioned as a reason to grant conscientious exemptions. Further- more, because of their unique positioning as sincerity verifiers where giving reasons for a belief cannot, this might warrant special treatment of religions in the sense that they can provide sincerity verification at a higher and more veridical rate. Thus, religious appeals should be the paradigm case for conscientious exemptions that all other reasons should strive to emulate. This is incorrect. If someone has a sincere belief and thus objects to compliance with a law, and their reasons for noncompliance are mere repetitions, we would rightly disallow an exemption. At the very least, it seems that sincerity will not do the trick as a sufficient condition, although it is certainly a necessary condition. We would not want to allow those who could rattle off a strong position for exemption from almost any law to do so without showing that they do hold the beliefs they are justifying for exemption, as far as we can tell.36 Perhaps this can be attacked another way. One could say that just because a large number of believers think that being a good believer does not require good evidence- belief relations does not mean that the religion does not. This is especially relevant given the wide gap between what the laity believes and what the actual doctrine is in each religion. For example, the Catholic Church teaches that birth control is intrinsically evil:

“In contrast, ‘every action which, whether in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible’ is intrinsically evil.”37

78% of the Catholic laity in America, on the other hand, support the use of the type of contraception that their church explicitly condemns as intrinsically evil.38 Thus, the objector would say, let us not judge based on what empirical evidence we have of believers, but rather on what the Church teaches.39

36Proposals that would allow this might include things like Hamilton, Marci. “The Case for Evidence- Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy,” Harvard Law and Policy Review 9, no. 13 (2015), in which Hamilton argues that we should only give case-by-case exemptions, with the legislature deciding the case. For a review of this proposal, see Laycock, Douglas. “The Religious Exemption Debate.” Rutgers Journal of Law and Religion 11 (2009), p. 157-168. 37Catholic Church. Catechism of the Catholic Church. 2nd ed. Vatican: Libreria Editrice Vaticana, 2000. CCC 2370. 38Ornstein, Norman. “In Today’s Environment, Contraception Could Become a Big Issue.” AEI, American Enterprise Institute for Public Policy Research, 22 June 2005. 39A yet further objection would be to say that there are religious objections that don’t reference a religion; e.g. “God personally revealed to me that I am to have no graven image on or of my person, in my house, or in my possession” (this is a variation on Jensen v. Quaring 472 U.S. 478 (1985) that I will

10 This is based on a faulty interpretation of my view. My view states that, whatever the religion itself says about its doctrines, it will accept believers no matter their reasons for belief. Now, the religion might publicly declare that one cannot be a member of their religion unless one assents to all their doctrines, but that line of reasoning only amounts to denying Catholicity to 78% of the Catholic laity. It would not, however, allow believer S the ability to let their religion give S’s reasons for them, which is what the objection at hand implies.40 No, believers must give their own reasons for their beliefs. Although their reasons may match their chosen religion, their religion may not present itself as a surrogate to give their beliefs and evidence for them.41 call a supernatural claim). However, the claim in this case is that it either (1) ties itself to a religion explicitly, in which case it falls under my proposal; or (2) it is not religious and should be interpreted on that ground. Since I am concerned only with objections that reference religion as a core part of their reason (and the freedom of religion probably will too), I won’t go into this in full. My brief answer is that we would not allow such a revelation in any other realm, and thus we shouldn’t here. The Court sided against Quaring (the religious objector) in this case. 40There are cases where I am sympathetic to allowing the religion to do this, but they generally appear in unique situations. Another objection of note here is the problem of rational religion, in which one is justified in believing the religion for some good reasons, but has no other reason to believe some moral claims other than they believe the religion is true. However, given that religion’s faith has been defined as explicitly apathetic, I find the problem of rational religion fails to be a problem from the start. A system that doesn’t care for one’s reasons for believing it cannot then care about meta-features of those reasons. To draw on Kierkegaard, belief in a religion is an irrational (really more like an a-rational) jump (see Kierkegaard, Søren. Concluding Unscientific Postscript to the Philosophical Crumbs. Cambridge University Press, 2009). Assuming that one can become religious without a Kierkegaardian jump, compare two systems of moral beliefs, a religious system and a secular system. Ms. Religion comes to believe that the religious system is correct because she had independent reason to think that some of the claims within the system were correct. She has no reason, however, to think the other moral claims are correct except that she thinks the religious system is correct. Now place Ms. Secular into the same situation in regard to the secular moral system. Are they not in the same epistemic position? They are not. Ms. Secular does have reason to think that the other moral claims within her system are correct, namely whatever method that secular system uses to collect it into that particular set of moral claims. If the secular moral system is consequentialist, e.g., then the reason for thinking the other reasons are correct is that they lead to the best consequences. We must not confuse having reasons for accepting a system and having reasons for what the system implies. Ms. Secular’s reasons for accepting the secular system is that her intuitions or other independent reasons implied that this is the best theory of morality. The secular system now gives other reasons for why both her original and her accepted beliefs are true, namely (sticking with consequentialism) that they each lead to the best consequences. Ms. Religion, on the other hand, doesn’t have such a luxury. Her reasons for accepting the religious system are similar, but now she references a system that is explicitly apathetic to the evidence, where Ms. Secular’s does not. 41One might see a further objection along these lines. Consider two persons giving reasons for their conscientious objection. The first, Ms. Religion, has her reasons rooted in her religion. She claims that she should not be forced to comply with a particular law because her religion has revealed to her that she must never do that which law demands. The second, Ms. Deontology, has her reasons rooted in her moral deontic system. She claims that she should not be forced to comply with the law because her deontic moral system has revealed to her that she must never do that which the law demands. One might now remark that, given the explicitly apathetic system behind Ms. Religion, Ms. Religion’s objection will be denied. But suppose we ask Ms. Deontology if she has any reasons for her believing her deontic moral system. It seems that, while her moral system does care about intention, why she believes certain

11 As a last note, I will entertain that some will think this is discriminatory against religious folks or religions in general. I disagree; I am merely stating that which is necessary to get a legal exemption. Critics of this variety are welcome to show why my proposal is not, in fact, necessary; but if it is, then it cannot be discriminatory. Everyone is required to give the same sort of reasons, and appeals to religion are not among them.42 Douglas Laycock points out that it would often be religious discrimination (either against believers or against nonbelievers) if whether or not the plaintiff is religious would things, and so on, she could be just very lucky that she has what we’ll presume to be the correct moral system. Thus, there are two things to consider here. First, perhaps being a good religious believer can mean many things. One can be a good believer all- things-considered, and nevertheless be a bad believer regarding their evidence for their beliefs. Surely this can be said of the deontologists as well—they are merely lucky that they like deontic moral systems and can give no further reasons for that belief. Unfortunately for the believer, I am not sure they can get out so easily. It seems that one could be a very good evidentialist when it comes to religious belief, but this is not necessary even though it is welcomed by the religion. Much like racial equality is welcomed by epistocracy but not a true consideration (i.e. it is only happy coincidence that it occurs), evidentialism might be welcomed by a religion while not required. The second consideration is whether Ms. Deontology or any other moral claimant of exemptions is in any better of an epistemic position than the Ms. Religion or the religious claimant of exemptions. Consider the new empirical data found in Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Vintage Books, 2013. Haidt claims in his introduction xx – xxi: “Moral intuitions arise automatically and almost instantaneously, long before moral reason- ing has a chance to get started, and those first intuitions tend to drive our later reasoning. If you think that moral reasoning is something we do to figure out the truth, you’ll be con- stantly frustrated by how foolish, biased, and illogical people become when they disagree with you. But if you think about moral reasoning as a skill we humans evolved to further our social agendas – to justify our own actions and to defend the teams we belong to – then things will make a lot more sense. Keep your eye on the intuitions, and don’t take people’s moral arguments at face value. They’re mostly post hoc constructions made up on the fly, crafted to advance one or more strategic objectives.” If this is true, this looks bad for the moral plaintiff. After all, completely post hoc reasoning seems much worse than appealing to a merely explicitly apathetic system. Furthermore, it appears Ms. Religion and Ms. Deontology are on equal grounds when it comes to reasons for believing their respective systems. Interacting with this argument is argument would be another paper unto itself, but let me answer it in short. It seems to me that Haidt is wrong about at least some instances of moral reasoning. Moral reasoning is hard, and following results even when it contradicts your initial moral intuitions is tough. This means that a great many people will not or maybe even cannot do so. Haidt also points out that religious people didn’t fare any better in their reasons for their moral positions. So, at the very least, the moral plaintiff is not worse off than the religious plaintiff. Finally, Ms. Religion and Ms. Deontology are not on equal grounds when it comes to their reasons for believing their respective systems. Religions are explicitly apathetic to the evidence, whereas Ms. Deontology’s moral system did care about her intentions, reasons, and so on when considering what to believe and how to act. 42For those that might still think it is bigotry, I will point them toward Ramsey, William. “Bigotry and Religious Belief.” Pacific Philosophical Quarterly 94, no. 2 (June 19, 2013): 128, in which Ramsey gives a detailed analysis of bigotry and purports to show that one cannot be bigoted by having a negative opinion of religious beliefs, although one can be bigoted toward religious folks in general. Given that my proposal focuses solely on the system of beliefs of the religious, I do not see how accusations of bigotry will hit.

12 change the outcome if the details remain locked.43 My proposal does not do this. Holding all the details locked would require that they give the same answer for why they believe something, which would lead to the same outcome. If an atheist gave an acceptable answer, then that same answer will be acceptable as an Evangelical Christian. If the Evangelical Christian gave an unacceptable answer related to their religion, then it would be equally unacceptable (and quite a bit stranger) as an atheist. Either way, my proposal aces Laycock’s test. In this paper I have made the argument, assuming conscience objections should be given in certain cases, that certain reasons simply will not do. Among these are reasons that merely repetition of the belief in question and reasons that are explicitly apathetic to the evidence. After a lengthy explanation of the nature of explicit apathy, I showed that the peculiar nature of faith is explicitly apathetic to evidence, and that the nature of faith is not a laundry list of other features that I rejected. I then argued that an appeal to one’s religion is either a repetition of the belief in question or is an appeal to a system that is explicitly apathetic to the evidence, both of which are unacceptable reasons when considering giving exemptions. Thus, I conclude that while we should give out conscientious exemptions when good reasons44 are given and sincerity is expressed, we should not allow religious appeals to count as a good reason; which is to say, it isn’t a religious reason at all.

43Laycock, Douglas. “The Religious Exemption Debate.” Rutgers Journal of Law and Religion 11 (2009), p. 173. 44Recall that ‘good reasons’ are merely not bad ones, e.g. repetition of belief, irrelevant reasons, strong anti-government sentiment, etc.

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