On Liberty of Conscience and Toleration or why we can’t eat the cake and have it too

In the past few weeks, a lot of ink has been spilled, both in the press and on social media, about the way some freedoms clash with anti-discrimination laws. The dominant leitmotiv seems to be that hate speech should be banned or even criminalised, religious exemptions are deemed unfair, and more recently, the presumably scandalous nature of the US Supreme Court ruling about the Christian baker’s supposed infringement on those anti-discrimination laws denounced. The fact that while writing this article, I find myself compelled to state that I neither identify with conservative morality, nor do I endorse its political agenda, speaks volumes of a dangerously moralizing climate spearheaded by the impassioned rhetoric of justice warriors turned zealots, who very keenly appeal to emotion by embracing the ad hominem fallacy of guilt by association in their systematic attacks against anyone who dares defend liberty of conscience, namely because of the blatant hijacking of the cause by the far right. These accusations hold as little substance as the castigation of public drinking of milk, just because the alt-right uses it as a way to promote white supremacy.

“How are anti-immigration protesters not thrown in jail?!”, “Should a doctor be allowed not to treat a patient on religious grounds?!”, “Are you happy to think the same way as fascists or bigots?!”, “How is it not misogynistic and sexist to criticise quotas and affirmative action?!” cry the exalted social justice warriors and revolted tumblrinas. These questions purposefully loaded with flawed analogies and armed with implicit yet unsubtle charges, while seemingly inviting a debate, shut it down in the crib quite wittingly. In the words of Daniel Dennett, those are rhetorical questions which depend on the sense that “the answer is so obvious that you’d be embarrassed to answer [them]”, but “trying to answer rhetorical questions instead of being cowed by them is a good habit to cultivate.” So I will do just that…

 

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Whether we’re talking about Freedom of Expression or about Freedom of Religion, both concepts boil down to the core idea of claim of conscience. To schematise the quarrels around whether or not they must be limited should they discriminate against any group or individual, we could say that the debate is basically about whether anti-discrimination laws ought to trump these principles altogether. This is why it’s important to be clear about the adequate framework of the debate which is from the perspective of the philosophy of law and constitutional theory, i.e. positive justice, and not from the standpoint of mere morality. It’s not about evaluating the moral merits of alt-right activists holding anti-immigrants protests or whether the baker is morally justified in refusing to create a wedding cake for a same-sex couple for religious reasons, it’s about why it’s more just for the greater good that they can, in spite of the morally polemic nature of their claims. Why opt for a constitutionalist positioning you might ask? Most definitely from a whole-hearted belief in the necessity of deeply entrenched meaningful limitations to the powers of government, to counter-act the tidal changes in policies and legislation by the parades of governing ideologies, and to provide a safeguarded ceiling against arbitrary and abusive lettre de cachet laws.

The question is therefore why should the state tolerate behaviours that are contrary to its values and laws and why is it more just to allow for exemptions to laws of general applicability?  The most convincing argument in favour of toleration has been developed by the American  philosopher Brian Leiter in Why Tolerate Religion? (2013), which examines the philosophical foundations of religious exemptions and toleration in the eyes of constitutional theory. Basically, toleration means for a state, to put up with principles and beliefs of which it disapproves. He gives the example of a case that was brought forth in front of the Canadian Supreme Court about a Sikh boy being granted the permission of carrying a dagger to school (which is a religious obligation for male Sikhs of a certain age, along with wearing the turban), even though the carrying of weapons in schools is clearly outlawed and prohibited. There is a plethora of possible justifications for toleration within the tradition of the social contract theorists (Hobbes, Locke etc.),  all in the lines of a form of compromise which is one somewhat plausible, albeit quavery reason for it. We put up with principles and beliefs that we disapprove of when it is thought that the cost of suppressing them would be intolerable. This rationale, in regards to religious beliefs, is the heritage of the Religious Wars that served as empirical evidence of the cost of suppressing such beliefs. This explanation is a fragile one because of the contingent aspect of its foundation which is factual, practical and reliant on an equilibrium of equal threat. That’s why Leiter will argue in favour of what he calls principled toleration, when even though the state can get away with suppressing beliefs and principles that are contrary to its values, yet doesn’t because there are good moral reasons for toleration beyond the issue of practicality. Consequently, principled toleration is built on moral foundations susceptible of being accepted universally rather than ideological ones or risk calculations.

 

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The moral arguments for principled toleration can be found in the two modern traditions of moral and political thought. The first approach is the deontological (Kantian) one advocated by John Rawls and the second is the utilitarian one (consequentialist) championed by John Stuart Mill.

 

The first argument from Rawls’ A Theory of Justice (1971), concerns justice and good. He argues that because of the pluralism of beliefs and principles, it’s impossible to impose the same idea of good on everyone, or to obtain a unanimous consensus of what good is. However, it is possible to agree on the fundamental principles of a justice that would be universal, in order to enlighten the process of lawmaking. As such, justice belongs to the public sphere whereas conceptions of good belong in the private sphere. Hence, in the public sphere, justice always takes the priority over good.

Nevertheless, the caveat is that the more restrictive and the less universal and inclusive the conception of justice, the more it alienates, excludes and sacrifices individuals or groups. Therefore, in order to prevent that from happening, constitutional justice defines the minimum requirements to guarantee the universality of the law.  So to answer the question of what a just society would be like, Rawls resorts to a thought experiment (a theoretical fiction à la social contracts theories that you can find in Hobbes, Rousseau and Locke) in which he imagines what he calls the original position, i.e. the moment in which individuals devise these fundamental principles that will govern society and its laws. Those individuals are going to deliberate behind what he calls, the veil of ignorance, which means that they will have no idea whatsoever about the place in that society which they will be occupying, they will have absolutely no knowledge of what gender, age, health, intelligence, wealth, race, education, religion, belief etc. they will be. The idea is to eliminate any self-serving personal interests in the conception of the foundations of the societal and state apparatus. However, those individuals are enlightened in their deliberation by the knowledge that they will themselves necessarily have claims of conscience as to what good is, even if they ignore whether they will belong in the minority or in the majority (a completely contingent fact). The assumption here is clearly that a minimal rationality universally shared by all individuals does exist, and is therefore compatible with different systems of values. Of course the original position is a theoretical fiction, but the takeaway from it is that the soundest attitude is never to proselytise a unique conception of good, but to focus on the respect of that minimal universal rationality which allows a flourishing life in society by bridging from the get go in rights and dignity the budding inequalities.

In consequence, any just society has to provide a protection for the liberty of conscience, and keep it from being usurped, suppressed or repressed, even in the name of an idea of good, and even in the utmost certainty (which is impossible) of a certain idea of good.

 

Mill’s thesis in his work On Liberty (1859), while situated in an entirely different stance on morality, basically defends the same protection, albeit with different arguments. According to him, from a utilitarian standpoint, a just society is the one that maximises utility, i.e. the greater good. So since the pursuit of truth (including moral truths) does maximise the greater good, then in order to achieve that, there must be a provision for the liberty of conscience. In his own words, “It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied.”  What that means is that the greater good is founded on the ability to constantly question our convictions about what’s right or wrong.

Since all our beliefs and values are inherited, it is this mere possibility of liberty of conscience to express dissenting opinions or beliefs, or act upon them, no matter how preposterous they are or how morally reprehensible, that allows for our inherited beliefs and values to be challenged and then adopted rather than just blindly followed. Instead of a paternalistic approach to the individual’s rights, this provides a space for individual agency in the construction of one’s own values. This stems from Mill’s fallibilism in regards to morality, meaning that while moral truths can objectively exist, the reliability of humans to determine them beyond a reasonable doubt is in question.

Practically, that means that Mill entertains the idea that one could be either completely or partially wrong about a moral standard. One can of course argue that some moral truths are certainties and are unanimously agreed upon by everyone, and that undermines the extent and magnitude of moral fallibilism. To that criticism, I respond with the following thought experiment: we all agree that having intercourse with animals is morally abhorrent, because they are sentient beings but cannot express consent since they possess neither self-awareness nor moral agency, therefore, with any semblance of morality, it is the consensus that such practices are in fact brazen morally condemnable abuse. But imagine that in the far distant future, time travel becomes possible, and that a time traveller from such a time visits us. This time traveller explains that in the future where he’s from, a device which can translate animal language into human language has been invented, proving definitively that animal cognition and self-awareness is in fact identical to that of humans. Then in the future where he’s from, it is considered discriminatory and specist to refuse to mate with them or consider them inferior in rights in any way. The missing variable which is the certain knowledge of their self-awareness and agency, overthrows the foundation of our previous moral assumption. This thought experiment is of course deliberately designed to shock by its extreme nature, but what it serves to illustrate is that moral fallibilism is a sound approach because it always ponders the prospect that one could be partially or completely wrong, and prevents us from becoming rigid self-righteous virtue warriors with immutable entrenched fixed mindsets.

But Mill goes much further than this in his reasoning: even if we have the absolute certainty of being completely and unequivocally right, there is still value in protecting the liberty of conscience, even if the opposing beliefs are completely and unequivocally wrong. Being challenged by even completely and unequivocally wrong beliefs, allows us to question the reasons and foundations of our own, instead of accepting our moral rectitude in a dogmatic conformist manner.

 

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Does that mean that there are no limitations to the exercise of that liberty of conscience? Absolutely not! And that’s why anti-discrimination laws exist. But the question is how far-reaching should the net of these anti-discrimination laws be cast and at what cost?  The limit is what is called in Mill the Harm Principle, that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Mill, On Liberty) . The threshold of the harm principle is intentionally high and objectively quantifiable, unlike the offence principle which is essentially subjective and thusly relative. In consequence, in matters of free speech for example, the scope of the harm principle is extremely narrow. What about hate-speech one might ask? Context is key! It provides either an incendiary and harm instigating platform, or is performed in a controlled environment which begs no coercive or punitive measure from the state. Mill illustrates this by mentioning the difference between saying that corn dealers are starving the people in a newspaper article, and saying the same to an angry lynch mob at the dealer’s doorstep. Similarly, an alt-right party to hold a pacific anti-immigrant protest in front of a government building is not the same as making a military white supremacist march inside a refugee camp; denouncing police brutality is not the same as rejoicing on social media for the demise of policemen, the subtext being ostentatiously appealing to violence against them. As for matters of freedom of conscience, religious or otherwise, the same rationale applies: should a doctor be allowed not to treat a patient on religious grounds? If he is the only doctor available in a remote deserted rural area or on the site of a major accident or if his expertise is unique in the world and no other could perform the same type of care, definitely not! However, in the presence of other medical professionals of equal standing, the harm of withholding care is negligible. Likewise, on the basis of the return and proliferation of extinct diseases, criminalising anti-vaxxers’ and conspiracy theorists’ insistence on not administering any type of vaccine to their children, falls under the scope of the harm principle, whether in regard to their own children, or to those of others. As for the now infamous baker who declined to bake the same-sex wedding cake, he didn’t withhold all of his creations from the said couple. Had it been for any other occasion, he allegedly proposed to create any other cake for them. How is his claim of conscience any different in standing from a baker who would refuse a commission for a cake that would glorify misogyny or polygamy or one with a swastika?

 

Perhaps the idea that would appeal the most in Brian Leiter’s book to any rational aspirant for social justice is that in the eyes of the law, the current status quo is such that there is an inequality in standing between religious claims of conscience and other claims of conscience, along with the fact that he advocates to extend the statute to all claims of conscience, secular included, on the basis that the moral justifications for principled toleration elaborated above, do not single out the specific characteristics of religious claims of conscience. Along the lines of the reasoning around the Millian harm principle, Leiter distinguishes what he calls burden-shifting exemptions, i.e. those that would be morally objectionable because they “impede the lawful pursuit of the general welfare”, namely because the exemption would impose the burden on those who do not have the same claims of conscience. As such, the wearing of the hijab would not impose burdens on others for example but wearing the niqab would for security reasons. The wearing of the turban in the army for a Sikh is not objectionable, but the carrying of a dagger to school would be. Whether the case of the Colorado baker is such a burden-shifting exemption remains to be determined. The ruling of the Supreme Court is, as was aptly pointed out by philosophy professor John Corvino, a very narrow one, in the sense that it shed the light on how the Colorado Civil Rights commission failed to properly examine the claim of conscience of said baker, and violated his rights in dismissing them by characterising his faith as despicable, and therefore overturned its judgement. The ruling neither reflects the Court’s stance on LGBT rights, nor aims at setting a precedent for the jurisprudence to abide by.

 

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In conclusion, in this era of overabundance of informational noise, and the war that’s waged for our attention, the paradox is that we find ourselves more often than not, confined in an informational bubble which nails our beliefs shut with confirmation bias. It is so easy to forget how ideologically charged any discourse in the press is, and how in all camps, events are instrumentalised and misconstrued to fit a narrative. Shouldn’t there be an ethical imperative to transcend political advocacy and rise above stifling self-righteousness and utopian aspirations? Isn’t it obvious that any utopia is fundamentally dystopic namely because it imposes a sole idea of good and harbours conformity? Why can’t we see how immoral from a consequentialist standpoint it is to allow for the far-right for example to use the attempts to silence them as a propaganda tool for their scandalous commandeering of the issues of liberty of conscience?  Why resort to the rhetoric that feeds the myth of their alleged martyrdom? The problem, I believe, is one of attachment on the part of the perpetually revolted social justice warriors to an alleged model of “moral purity”. “Only the good shall prevail, moral justice be damned!” they could say. But we can’t eat the cake and have it too, can we? So, I will be among The Ones who walk away from Omelas.




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