Does religious liberty matter? Is religion special? A growing view holds that there is no good reason for singling out religion for any special treatment. Freedom of religion, it is said, can be adequately catered for by a general respect for freedom of conscience. This incidentally ignores the importance of the freedom of religious institutions. Brian Leiter starts off his controversial book by referring to the case of a Sikh boy wearing his kirpan (ceremonial dagger) in the classroom, as a sign of religious commitment. Why is that different from any other case of a boy of similar age bringing in a knife to a classroom, as a symbol of some other kind of identity, perhaps even a membership of a gang? The Canadian Supreme Court, to take just one example, has ruled that Sikh youths be given a special exemption from a ban on knives, precisely because of their religious beliefs. We could multiply other examples where religion has in the past been given a special status. For instance, courts could be more sympathetic to workers who do not wish to work on Sundays because of religious beliefs than because of their passion for supporting a Premier League football team.

However, religion in general, and Christianity in particular, can no longer assume any special status in law. In Europe the talk is of ‘freedom of religion or belief’, which widens the scope of the area protected way beyond the ‘free exercise of religion’ mentioned in the First Amendment of the US Constitution. The more that is protected, the less certain any protection becomes. The problem is that while some specific exemptions for religion from general laws can be countenanced, such as Sikhs not wearing crash helmets on motorbikes, a general exemption for any conscientious objection to any law will make it unenforceable. Taxes might never be collected because of people's objections. Downgrading religion in the eyes of the law may not result in upgrading a more general right to ‘conscience’.

This does not deter Leiter from denying that there is any ‘moral reason’ for singling out religion for special legal consideration. He takes this position because, like many, he sees ‘faith’ and reason' as being fundamentally opposed. Religious beliefs, he claims, ‘are insulated from ordinary standards of evidence and rational justification, the ones we employ in both common sense and in science’ (p 34). He then flirts with the possibility that this very fact, together with what he terms the ‘categorical demands’ of religion on action, may make religion particularly dangerous. Perhaps, compared to other matters of conscience, religious beliefs may be ‘far more likely to cause harms and infringe on liberty’ (p 59). Leiter draws back from this conclusion, admitting that a religious conscience has often been responsible for good, but thinks that it should only be respected because of our general respect for freedom of conscience. Religion should expect no special exemptions from laws. He says that ‘it is not obvious why the state should subordinate its other morally important objectives – safety, health, well-being, equal treatment before the law – to claims of religious conscience’ (p 103).

The result of this approach is to deny that any state is in principle subject to any authority beyond itself, and certainly not that of God. The secular state rules supreme. Its judgments, however arrived at, about what, for example, constitutes ‘well-being’, will prevail. Any idea that our most basic ideas of justice, fairness, freedom and equality might themselves have a religious basis has been ruled out by the glib assumption that religion is a matter of non-rational faith. It is not enunciating purported truths about the world, worthy of consideration by everyone. It has no place contributing to public life at all.

Such a bleak view of religion (and one that would be mightily contested within the philosophy of religion) leaves only the question of how far it can be tolerated. It was James Madison, in debates about a Virginia Bill of Rights in 1776, who objected to George Mason's draft upholding ‘the fullest toleration in the exercise of religion’, proposing instead a phrase which became ‘the free exercise of religion’ and which was taken up later in the Bill of Rights of the whole United States. Madison's point was that ‘toleration’ was merely permission by a higher authority; moreover, it was a permission that could easily be withdrawn. It was not the proper recognition of an innate, God-given, right to freedom of religion. In Leiter's case, the toleration reluctantly conceded is not that of other denominations by an established Church, as was the case in Virginia. It is the toleration of a secularism that is remarkably unsympathetic to religion, and sees it at best as something only of subjective value to individuals, with no possible claims to truth. Religion has to be kept in its place, and that place is far from the public square. This stems from a tendentious and dogmatic assumption that faith and reason are far apart and underlines the intolerance lurking beneath the surface.

The importance of this book should not be underestimated. Its implications stretch far beyond the United States. It will be widely discussed, not least because it makes explicit many assumptions held by those suspicious of religion, or opposed to all its manifestations. The very brevity of the book will ensure that more people will read it. In particular, the idea that religion is impervious to reason or evidence is taken for granted by many, and is a view that has recently found expression in English courts by judges in some high-profile cases. The position is merely stated dogmatically, but that does not reduce its influence. Its origin may well be in the kind of science-based logical positivism that has long since been discarded by philosophers. Yet, as this book demonstrates, it can bolster a prejudiced attack on the idea that there is anything about religion that should command general respect.