Religious Exemptions and the Liberal State: A Christmas Column

December 24, 2012
By STANLEY FISH

On Sunday in these pages, Molly Worthen reported on the decline of “the Protestant civil religion that has undergirded our common life for so long “(One Nation Under God?).” That might come as a surprise to the millions of TV viewers who watched the memorial service held in Newtown, Conn., a little more than a week ago. Despite a few gestures in the direction of Catholics and religious minorities (and no gestures at all in the direction of non-believing atheists and agnostics), the tenor of the service was deeply Protestant, as were the remarks of President Obama (that famous Muslim!) who seemed more preacher than chief executive as he repeatedly struck biblical chords and ended by recalling Jesus’s call to send the little children to him.

The memorial service was not the only occasion marked by the unapologetic invocation of religious sayings and symbols. For a few days at least, God and Christ were major media personalities, and the outpouring of ritual piety seemed to confirm Brian Leiter’s identification of “existential consolation” as one of the chief characteristics of religion. For believers, writes Leiter in his new book, “Why Tolerate Religion?” religions “render intelligible and tolerable the basic existential facts about human life, such as suffering and death.” Rendering the suffering and death experienced in Newton intelligible is surely what Obama and others were trying to do, and it is easy to understand, as Leiter observes, why religious belief is of “central importance in so many lives.”

But Leiter has another question: Does the undoubted centrality of religion in the lives of its adherents suffice to justify exempting it from generally applicable laws? Should religion enjoy a special status that merits a degree of solicitude and protection not granted to other worldviews or systems of belief?

Leiter’s test example involves two 14-year-old boys who, in violation of the law, wear daggers in their respective schools. One boy is a devout Sikh who believes that wearing the dagger is a symbol of religious devotion required by his faith. The other boy wears the dagger because in his culture the passing of a dagger from father to son symbolizes “a boy’s identity” and “marks his maturity and his bond with the past.” There is no evidence that either boy has ever used his dagger to perform acts of violence or intimidation. Suppose, further, that the two boys were to challenge the prohibition against wearing weapons to school in the name of “a conscientious obligation” to carry out the imperatives of their traditions. As things stand now, Leiter observes, the Sikh boy might prevail, but “in no Western democracy” would the second boy prevail.

http://opinionator.blogs.nytimes.com/2012/12/24/religious-exemptions-and-the-liberal-state-a-christmas-column/

Stanley Fish is a professor of humanities and law at Florida International University, in Miami. In the Fall of 2012, he will be Floersheimer Distinguished Visiting Professor at the Benjamin N. Cardozo School of Law. He has also taught at the University of California at Berkeley, Johns Hopkins, Duke University and the University of Illinois, Chicago. He is the author of 13 books, most recently “How to Write a Sentence,” a celebration of sentence craft and sentence pleasure; “Save the World On Your Own Time”; and “The Fugitive in Flight,” a study of the 1960s TV drama.