Why Religion Should be Legally Special

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In 2005, a teenage boy wore his dagger to school.

The boy was Amandeep Singh, a devoted Sikh, and the dagger he wore was a kirpan—a Sikh article of faith—which Sikhs wear daily to remind themselves of their duty to fight injustice and stand up for the defenceless. Amandeep’s dagger was duller than a butter knife, three inches long, and he’d worn it, without incident, in several public schools.

In February 2005, pretty much out of the blue, Amandeep’s New York school labelled his kirpan a ‘weapon’, and refused him entry unless he took off his article of faith. In March, following the intervention of groups like United Sikhs, the school district lifted its suspension, and allowed Amandeep to re-enter school if he agreed to wear a slightly shorter, two-inch blade (which Amandeep happily did).

Similar results have been replicated in numerous courts in numerous countries, including the Supreme Court of Canada.

In Why Tolerate Religion?, philosopher Brian Leiter considers the fact that cases like these reveal a puzzling asymmetry in the Law. Leiter asks us to imagine a parallel case, but one where the “boy is not a Sikh but a boy from a rural family whose life “on the land” goes back many generations”:

As in almost all cultures, this boy’s community has rituals marking the arrival of maturity for males in that community. A central one is the passing of a dagger or knife from father to son, across the generations. To be a “man” at the age of thirteen or fourteen is to receive that dagger from one’s father, just as he received it from his, and so on, stretching back for decades, perhaps centuries. A boy’s identity as a man in his community turns on his always carrying the family knife, for it marks his maturity and his bond with the past. There can be no doubt in this case about the conscientious obligation every boy of knife-bearing age feels to carry his knife with him, even in school. And there can be no doubt that were his ability to carry his knife abridged, his identity as a man devoted to his community would be destroyed¹.

However, as Leiter notes, “[t]here is no Western democracy, at present, in which the boy in our second scenario has prevailed or would prevail in a challenge to a general prohibition on the carrying of weapons in the school.”:

Were he a Sikh he would stand a good chance of winning. But if he can only appeal to a century-old tradition, central to his identity, to which he feels categorically bound by his family traditions and upbringing, he is out of luck. The central puzzle […] is why the state should have to tolerate exemptions from generally applicable laws when they conflict with religious obligations but not with any other equally serious obligations of conscience.²

To the status quo’s chagrin, Leiter winds up denying that religion should be legally special. Pragmatic considerations aside, there’s no reason why religion intrinsically deserves more tolerance than other claims of conscience.

Contra Leiter, I think religion does deserve special treatment, and deserves it in virtue of being religion.

Here is my theory of why³.

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To argue that religion deserves special treatment in the Law, we need to point to something distinctive of religion and explain why that grounds its claim to special treatment.

Leiter, in his book, singles out two things he takes to be distinctive about religious claims of conscience, and argues, convincingly, that neither grounds Religious Supremacy:

1. Much of religion is taken on ‘faith’, and is thereby insulated from normal standards of reason and evidence.

2. Religions make categorical demands on believers (“Thou shalt not make graven images!”, “Wear this hat!”, etc.)

I’m fully on board with Leiter that neither of these alleged features of religion explains why it should be treated with judicial kiddy-gloves. (For one thing, a successful theory of why religion deserves special treatment should explain why people like me—whose core religious beliefs are sensitive to reason and evidence, and frequently change in light of it—should get special religious exemptions.)

These Mickey Mouse theories aside, here is why religion really deserves special treatment:

3. Religion deals with the afterlife.

To be a bit more precise: nearly all religious believers take their commitments to have, in expectation, seriously important afterlife consequences, often infinite in scale. Even religions—like Buddhism—which don’t take an afterlife as their ultimate end, still have a roughly equivalent goal—e.g., extinguishing the illusion of a permanent self—which is just as well-suited to my argument.

Why does this matter? Well, generally, insofar as we care about respecting people’s claims of conscience at all, we care (or at least, should care) about the significance of those claims by their lights.

For example: one reason respecting people’s consciences on matters of sex, marriage, war, etc., tends to be more important than respecting their conscience on, say, whether an Oxford comma appears on their funeral hymn sheet, is that people tend to think the consequences—for themselves—of sexual, marital, and kill-or-not-kill decisions are way more important than the consequences of hymn sheet grammar.

Bring in the afterlife, and matters of conscience start to look really significant. Hence, the bar for overriding religious conscience is a helluvalot higher.

I’m not endorsing any fleshed out moral principle about when, why, and the scale to which expected consequences of conscientious commitments matter morally and should be legally protected, or whatever. Nearly all moral principles contrived with that level of ambition turn out to face counter-examples. I’m just appealing to the woolly-but-intuitive-notion that the degree to which someone takes the expected, prudential consequences of their commitments to matter affects how strongly we ought to tolerate it, both in life and in the law.

This story includes basically all the religions we intuitively want to be given special, conspicuously religious treatment (Sikhism, Hinduism, Islam), while excluding basically all of the “religions” (wokeness, the Ayn Rand cult, environmentalism) that we don’t.

You might object: “This theory is underinclusive! Some religious folk are universalists, meaning they think everyone winds up in whatever their religion considers to be the “good place”—Heaven, Moksha, Janna, liberation from the cycle of Samsara, what have you. But on universalism, you might object, religious commitments are completely inconsequential vis-à-vis the afterlife. Thus, your theory doesn’t explain why they should get special treatment.”

In reply, I’m willing to bite this bullet, but I don’t think it’s especially tooth-shattering. Few universalists think our this-worldly religious commitments are totally inconsequential vis-à-vis the afterlife. Many think that our this-worldly commitments can affect, in expectation, both the speed at which we get to ‘the good place’ and the quality of our time there (determined by, e.g., the closeness of our relationship with God, which might depend on how well we served Him on earth).

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1. Leiter, Brian. (2013). Why Tolerate Religion? Princeton: Princeton University Press: pp. 2-3.

2. Ibid., p. 3.

3. A similar theory has been defended in print by Richard Eva: https://philpapers.org/rec/EVARLA