Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and Its Limits

Paulsen provides an autobiographical and a conjectural account of cases of personal and professional dilemmas of government lawyers

A RFRA Runs through It: Religious Freedom and the U.S. Code

A RFRA Runs Through It: Religious Freedom and the U.S. Cod

The Unconscionable War on Moral Conscience

My thesis in this review builds on and is inspired in part by George’s book: Where, or to the extent that, a conflict between conscience and authority reduces to a pure stand on principle by each side—sincere conscience for its sake versus authority for its—in a free society conscience should almost always win. The only time that claims of government authority should triumph over genuine claims of religious conscience is when religiously motivated conduct would produce essentially intolerable harm to others—harm of a kind and degree that would lead one to conclude (in effect, not literally) that it is inconceivable that a just and good God, rightly understood, possibly could have commanded such conduct, and that it is necessary for the state to reject the religious claim in order to prevent such intolerable harm to others. That should be a highly unusual case. In most instances of claimed religious conduct, the stakes are not nearly so high. Frequently, they involve not much more than a claim of state authority to suppress the exercise of religious conscience simply because the state finds threatening in principle the idea of conscientious resistance to its commands. Where that is the case, I submit, there is only one possible answer. Sincere religious conscience should always prevail over claims of government authority that reduce to the asserted need to vindicate government authority for its own sake

Is Religious Freedom Irrational?

Brian Leiter is almost exactly half right. There is no convincing secular-liberal argument for religious liberty, in the sense of unique accommodation of religious beliefs and practices specifically because they are religious. Indeed, from a thoroughgoing secularist perspective — from a stance of committed disbelief in the possible reality of God or religious truth, and perhaps also from the perspective of unswerving agnosticism — “toleration” of religion is almost intolerably foolish. Affirmatively protecting the free exercise of religion, in the strong sense of freedom of persons and groups to act on religious convictions in ways opposed to secular legal norms, is even harder to justify. Religious liberty simply does not make much sense on purely secular grounds that start from the premise that sincere religious conviction does not correspond to anything real. That is Leiter’s starting point, and it is not surprising that he ends up where he does — concluding that there is no good reason for uniquely protecting religious conscience and conduct. Why Tolerate Religion? If one is a secularist, there really is no fully acceptable answer. The only convincing reason for protecting religion is the conviction that there is, or may be, such a thing as ultimate religious truth, that such truth is in principle the most important thing there is, and that, consequently, it should prevail over any social rule, law, or custom to the contrary. If religious truth might exist, the freedom to pursue it is worth protecting to the highest degree possible; and the freedom to act in accordance with one’s sincere religious convictions similarly merits the greatest possible societal indulgence and legal protection. And one can reach those convictions on rational premises: Religious belief is (in at least some of its forms) an entirely rational, reasonable position. Even if reason might not get one all the way to religious faith (and may better support some religious beliefs than others), it supports the general rationality of religious conviction. Protection of religious freedom is, largely as a result of this fact, an equally sensible policy. Liberty is an imperfect policy, but it is good for promoting rational inquiry and for protecting what may well be rationally justified, true, and (if so) supremely important religious convictions. Leiter assumes the opposite (quite literally, he assumes it): that religion is intrinsically false and irrational. This is a major philosophical and intellectual weakness in his argument, as I discuss below. But if one starts, as Leiter does, from the premise that there are not and could not possibly be such things as religious truths — that religious belief is, by definition, a set of irrational ultimate commitments — then one is sure to get to the conclusion that serious religious liberty makes no sense. Well then, how about it: Is religious freedom irrational? Is belief in the possibility of true religious belief silly or confused, so as to make special protection of religion derivatively foolish or insane? Is religious conviction so intrinsically irrational that it is almost literally crazy (or at best craven) for the framers of the First Amendment to have singled out the free exercise of religion for special constitutional indulgence