FREE RELIGION
The Freedom of Religion Clause inthe Constitution is peculiar, but not entirely unique. It guarantees the religion business which, like the arms business and what used to be called the press, offersspecial protections not accorded (or hardly accorded)anyone else. Withthe press and guns, definitions canbe tricky, but with religion, they are even more elusive. Religion can begin either as a set of beliefs or as a set ofpractices, or more commonly, some combination of the two, but what those beliefs are,how coherent or consistent they need to be and what counts for what– with such things as attitudes toward a deity,prayer, customs, diet, dress,status among members, treatment of outsiders, holyliterature, end of life issues, ritesof passage, or moral precepts – variesso widely as to dismay any looking for a canonical ordefinitive set of criteria. Here we are left mainly with Wittgenstein’sidea of family resemblances,in that, for example, people share with their cousinsoverlapping but not completely identical traits, hardly a basis for limiting the vaguely familiar, but in fact party crashers, at the wedding.
The significant issue in philosophy is that religions (or their theologies) may just plain be wrong. Like belief systems, at timesembarrassinglyembracedby philosophers, religions may be saying things that we think to belogically or empiricallyfalse,orare ethically or historically pernicious or inaccurate. Somephilosophers have tried to reconstruct religion on a rationalbasis, famously within the Sephardic tradition of Maimonides’Guide to the Perplexed which largely stripped religionofmiracles and the power of prayer and with Spinoza, whose Tractatusallowed for a distant, impersonal, bloodless deity, one so uninvolved that a famously skeptical Einstein found it unexceptionable. Is that sufficient for religion? If,in fact,it is the beginning of some sympathetic look at religion, but stripping that religion of all that is false, why should the Constitution gofurther and protect falsehood, the incoherent, or the ethically pernicious? That is, there is no protection for error in scholasticmetaphysics, astrology (perhaps all astrology is erroneous),alchemy, or any other now scientifically discarded belief. In protecting theFirst Amendment, one mightquestion why religion is privileged and to what degree.
The secondproblem is, as pointed out by Luke Goleman in his interesting and instructive paper, the ethical issues attendant to religion. At least since Kant’s ReligionWithin the Bounds of ReasonAlone, perhaps earlier with Spinoza and even with echoesfrom Plato'sEuthyphro, philosophers have made the followingargument: if we can judge particularreligions by their ethical content, perhaps findingpacifist Quakerism more ethically compellingthan a religion advocating violent jihador child-sacrifice,then,on ethical groundsat least, there is no reason to see religions as the definitive source ofmoral values. In fact,we might more soundly locate those moral values in ethical theory, whetherone deontic, consequentialist, virtue theoretic, social contract, or someplace else.If that so, and if ethical theory underlies at least part ofthe special place of religion under the First Amendment, then we ought to be able to give those protections to the reasons underlying religious ethical teaching, namely, deontology, consequentialism,etc. Thus, if I do not want to go to war on ethical grounds,then being Quaker ought to be irrelevant to my wishes being respected.
These are the concerns of Mr. Goleman. His thesis, as I understand it, is this: the law should not require a sincerely expressed and well-supported conscientious objector to be forced to do an objectionable act. The principle is a prima facie one, the kind notoriously weak (almost anything trumps it), but we should notice that it is a moral claim about law, not a claim within law. Religious objectors are, as Mr. Goleman points out, under the First Amendment regularly accorded protection under that principle: others only rarely so.
In order not to be overrun by proverbial floodgates of objectors, with feigned or real sincerity – although Goleman does not provide any comfort that we are able to distinguish the two, and judges and juries, as long as we are speaking of the legal realm, have notoriously been unsuccessful in sorting out the genuine from the pretender – Goleman suggests religious affiliation (somehow defined) ought to be the test of qualification. But religious belief for Goleman is not enough. Those wishing to claim religious cum moral sincerity must do more than repeat or parrot a belief, and do more than make an argument without rational argument or evidence. They must, somehow, rationally argue for it. But how?
Not by repeating it alone. What God or Scripture say is not enough. But isn’t that so much of religion? Muslims and Jew avoid port, Catholics bare their heads in church, Christians see the Eucharist as an impossible but real biological transformation, religious require everyone ceremonial actions for initiation weddings and funerals, confession exonerates, Baptism purifies, virgins give birth and burning bushes speak.
There is an additional problem Goleman notices: the space between theology and practitioners’ beliefs. He cites the Catholic Churches’ view on birth control, a view that at least American Catholics do not follow. Where church teachings produce faulty students, which view counts? By looking at a strongly theological and hierarchical based paradigm of religion, Goleman overlooks those religions and religions where culture doctrine is vaguer and more heterogenous. Moreover, there is the force of Reza Aslan’s argument about Islam: adherents’ beliefs, with all their murkiness and ambiguity, constitute the beliefs of the religion. These issues might give greater impetus to Goleman’s conclusion that it is the view of the adherent, not clergy or scripture,that matters when we judge the claims of conscience.
Goleman suggest that religion, unlike other belief systems, is apathetic to evidence, a promotion from Brian Leiter’s view that religions are insulated from evidence altogether. It seems, at least to me, that both views might be mistaken. Religion welcomes both rational evidence and faith evidence. It is, to use a loaded term, more catholic than non-religious beliefs. That fact that religions allow as legitimate an additional argument does not mean that science and history don’t count. The constant attention and scholarship devoted to documenting the historic lives of Moses, Jesus, Buddha, and Mohammad; the attempt to justify holy texts and ancient rites; the arguments showing the wisdom, humanity, and foresight of religious leaders and writings: these look like run-of-the-mill rational arguments. They, to use Goleman’s term, prima faciecount. Thus, no argument detached from a religion seems necessary to invoke religion as a reason, if reason it be.
And reason it is. We do not honor religion, as Goleman suggests, solely as a repository of the conscience. In fact, Goleman as his excellent analysis points out, and as others such as Dennett have detailed elsewhere, if religion needed moral justification to enjoy protection, that protection would be twice jeopardized: at times because it is underserving, at times because being deserving challenges power so dramatically to put it in jeopardy. Reason, truth and sincerity are not, however, why religion is protected. It is because one’s conscience at its deepest level – the level of religious awe, a shared community, and the meaning of existence – is placed off bounds. As part of that, we protect religion as the historical victim of repeated, unspeakable atrocities. In that context, giving a few devout who are inarticulate, confused and shallow, but sincere, a free pass from military service, making them instead, perhaps, hospital orderlies, seems to be a reasonable political compromise. Morality has nothing to do with it.
Joel Levin
Department of Philosophy
Case Western Reserve University
Cleveland, Ohio
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