1. Leiter, Brian, Why Tolerate Religion?, 25 Const. Comment. 1 (2008)Google Scholar.

2. Nussbaum, Martha S., Liberty of Conscience: In Defense of America's Tradition of Religious Equality 19 (Basic Books 2008)Google Scholar.

3. Leiter, Brian, Foundations of Religious Liberty: Tolerance or Respect?, 47 San Diego L. Rev. (forthcoming 11/Dec. 2010), available at http://papers.ssrn.com/s013/papers.cfm?abstract_id=1474324Google Scholar.

4. Leiter, Why Tolerate Religion?, supra note 1, at 15 (footnote omitted).

5. Id. at 17. It is not entirely clear what “giving effect” is, but Leiter appears to claim that religion addresses more than mere morality by imposing something more than mere moral culpability. Beyond that, I am not sure what he means, but it might be an other-worldly incentive:

The claim is not that all beliefs commonly denominated “religious” issue in such commands, but that it is characteristic of religion that at least some of the commands in which it issues are categorical in character. It may be more accurate, though, to say that religious belief issues in as-if categorical demands on action, since it is familiar enough that religions can impose other-worldly incentives to produce action in this world that seems “as if it were a response to a categorical reason, when it is really a response to an instrumental reason for achieving an other-worldly objective…. Indeed, as I note later on, to the extent that a metaphysics of ultimate reality is also a distinguishing feature of religion, it may supply believers with instrumental reasons for acting insofar as acting in the right kinds of way enables believers to stand in the right kind of relationship to that ultimate reality.

Id. at 15, n. 37.

6. Id. at 23.

7. Id. at 15.

8. Id. at 23.

9. Nussbaum, supra note 2, at 19.

10. Leiter, Foundations, supra note 3, at 3.

11. The public intellectual presently speaking for a far more benign concept of religious sentiment and practice is the historian Karen Armstrong. As Lisa Miller suggested in a Newsweek article, “[w]hat the Greeks called logos and mythos define two different aspects of the world and our experience in it: the knowable and the unknowable. You can believe in both.” It seems to me Miller has captured the thrust of the argument as follows: “the new atheists are, in effect, buying into one particular modern, Western fundamentalist notion of God in order to make God look ridiculous and knock him (or her or it) down.” Miller, Lisa, Out, Out, Damned Atheists: Karen Armstrong Weighs in on God, Newsweek (09 21, 2009), at 29Google Scholar.

12. The either-or proposition for determining whether an investment contract is a security and thus regulated by the federal securities law is whether it is one in which a person invests money in a common enterprise with the expectation of a return on the investment through the efforts of others. See SEC v. W.J. Howey, 328 U.S. 293 (1946). Yet at the margins we find ourselves throwing out the propositional, linguistic model, and returning to analogies or metaphors to the prototype of the ICM: how much does this instrument look and feel like a share of common stock? Thus, even though the Howey definition could literally be read to include an employee's investment interest in a pension fund, it is not a security. Int'l Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 570 (1979). And even though the share of stock that entitles one to purchase a New York City cooperative apartment falls literally within the laundry list of instruments that are securities under Section 2(a)(1) of the Securities Act of 1933, 15 U.S.C § 77a et seq., nevertheless, the context requires that it is not a security. United Housing Found., Inc. v. Forman, 421 U.S. 837, 859-60 (1975). John Searle deals with this issue of definition, i.e., that to criticize a definition, we must already have a concept of the thing being defined. Searle, John R., Speech Acts: An Essay in the Philosophy of Language 5–8 (Cambridge Univ. Press 1970)Google Scholar; see also Searle, John R., Intentionality: An Essay in the Philosophy of Mind 1, 149 (Cambridge Univ. Press 1983)CrossRefGoogle Scholar.

13. Steven Winter argues persuasively that this kind of “either-or” definitional exercise, central and often essential to legal thinking, is at odds with how our minds actually work, at least as cognitive scientists now theorize. See Winter, Steven L., A Clearing in the Forest: Law, Life and Mind (Univ. Chi. Press 2001)Google Scholar. The thesis is that our brains are hardwired to think not in fixed categories, but by way of evolutionary and culturally developed basic schema—“idealized cognitive models”—complete with prototype effects. For example, we have an idealized cognitive model of a security, the prototype effect of which is a share of common stock. We decide whether another kind of investment is a security not by the logical application of the definition, see supra note 12, but by processes of conceptual integration, blending, analogy, and metaphor in which we compare the salient features of the prototype with the target. In other words, the conclusion comes first, and the definition follows. I think it is fair to say that Leiter is projecting his own prototype of religious belief, and then following it up with a corresponding definition.

14. There are many legal exercises in which, regardless of the underlying cognitive science, judges have to take a constitutional or statutory word or phrase and decide whether the circumstances either fit or not. That is not the issue here. We are merely talking about whether this definition appropriately sets apart beliefs worthy of respect or not. Were I to make this argument in terms of the cognitive science Professor Winter explicates, (see id.), I would say that Leiter has incorrectly extended his particular prototype effect of fundamentalist religious belief to all religious beliefs, and that is simply unfounded. Religious belief is capable of moving, and indeed does so move, away from the fundamentalist prototype, becoming less and less dependent on what Leiter and I would agree was religious dogmatism, and more and more responsive to reason that flows from a core of foundational beliefs not unlike more secular moral philosophies.

15. I take this from the way in which Leiter distinguishes religion from Marxism. See infra note 18. Marx conceived of it as a science, and therefore presumably would have revised it in the face of reasons and evidence. Not so a religion: “all countenance at least some central beliefs which are not ultimately answerable to evidence and reasons as these are understood elsewhere (e.g., in common sense, and in science).” Leiter, Why Tolerate Religion?, supra note 1, at 17.

16. Leiter acknowledges that many people adhere to something like my “religion of reasons” as a softer example of religion, far less categorical in its demands, and thus more difficult to distinguish from other exercises of conscience. Nevertheless, he assets that (a) the softer beliefs are still “unhinged” (hardly a neutral word) from reasons and evidence, and (b) the focus in the paper on toleration is on what he calls the “core, distinctive case of religious belief.” Id. at 24, n. 58. Nevertheless, as I understand the argument as later applied, even these softer religious beliefs would fall on the “non-respect” side of the line.

17. This goes back to whatever Leiter means by “giving effect” to the categoricity. See supra note 5. I think he means that there is some kind of external reward or punishment for failure to live up to the categorical demand. If the giving effect is entirely internal, then that is a matter merely of conscience or guilt, i.e., internal moral culpability, and at that point, we are back to no distinction at all between religion and other moral systems. While external reward may indeed be critical to some religions, it is not even close to being true universally as an empirical matter. There are some religions that could be fairly characterized as nothing more than Kant's categorical imperative with some poetry and music thrown in (think of Unitarianism, versions of modern Judaism, or a number of Eastern religions). One reason I think Kant appeals to Jewish philosophers is the idea that duty based on the expectation of reward (whether in this life or another one) undercuts the essence of duty, which is the product of pure practical reason. See Schwarzschild & Seeskin, infra note 27.

18. For example, the paper has what I think is a labored attempt to distinguish Marxism from religion, the upshot of which is to put Marxism on the normatively good side of the line, and religious belief on the other. Leiter says, “Marx, as is well-known, conceived of his theory as a ‘scientific’ account of historical change, and thus it had to answer to the same standards of evidence and justification as any other scientific theory.” Leiter, supra note 1, at 17. Whatever Marx thought or did not think, the idea that all Marxists therefore might be more willing to abandon categorical principles in the face of reasons and evidence flies in the face of common sense. Kant decried dogmatism, but that does not stop a Kantian from being dogmatic. And it is probably fair to say that a good number of Marxists would not change their beliefs in response to allegedly falsifying evidence.

19. Quine, W.V., Two Dogmas of Empiricism, in Curd, Martin & Cover, J. A., Philosophy of Science: The Central Issues 280, 298 (W.W. Norton & Co. 1998)Google Scholar.

20. I further assume that Leiter would view debate over concepts that have no application to the real world to be arid or sterile; that is, the concepts, like the Kabbalah, might be coherent, but who cares? That strikes me as a wholly empirical question, or one to be determined by practice. As discussed below, if Kabbalahists can cash out their coherent concepts in the practice of their lives, then that is all the justification they need.

21. Hume and Kant shared a distrust of “common sense” as a means of explaining worldly events, because common sense is just the ordinary exercise of reason, and may or may not actually explain things. Common sense and reason might result in a Ptolemaic view of the workings of the heavens. As Kant observed, finding laws of nature is a difficult task; the oft-misconceived metaphysics of “common sense,” like dogmatism, however, are easy, and “float to the top.” Kant, Immanuel, Prolegomena to any Future Metaphysics 6, 21–24 (Cams, Paul ed., Open Court 1949)Google Scholar.

22. Quine, supra note 19.

23. Collins, Francis S., The Language of God: A Scientist Presents Evidence for Belief 6 (Simon & Schuster 2006)Google Scholar.

24. None of the candidates—from the substance dualism of Descartes to functionalism—are wholly satisfactory.

25. Gen 22:1-19 (All Biblical citations are taken from Jewish Pub. Soc'y 1955.).

26. One of my colleagues, Andy Perlman, challenged my reading of this as a vindication of reason over blind faith. Here is my response. The story begins “that God did prove Abraham, and said unto him: ‘Abraham,’ and he said ‘Here am I.’” When Abraham took the knife to slay Isaac, this is the language: “And the angel of the Lord called unto him out of heaven, and said, ‘Abraham, Abraham.’ And he said ‘Here am I.’” Note there is a parallelism, but differences in the language. When God speaks, there is no question that God is in heaven. The text goes out of its way to tell this is not a material kind of angel, but one that, like God, speaks from Heaven. It is also interesting that the angel repeats the name Abraham twice. When God speaks, Abraham responds immediately, but when it is the angel, it takes two calls before Abraham speaks the identical word “Hineni” (“here am I” in Hebrew). I interpret the parallelism and the differences as trying to make it clear that however God speaks, the angel is doing it in the same way-whether it is a literal voice, or it is one's conscience speaking—and that God's first order can be overruled because it is evil regardless of its source.

27. Cohen “held that there can be only one rational religion, which would have to be as universal and necessary as pure reason itself, and that consequently all human beings, at least regulatively speaking, would subscribe to it.” Schwarzschild, Steven S., The Title of Hermann Cohen's “Religion of Reason out of the Sources of Judaism, in Hermann Cohen, Religion of Reason Out of the Sources of Judaism 8 (Kaplan, Simon trans., Scholars Press 1995) [hereinafter Cohen]Google Scholar. Compare Leiter's methodology to Kenneth Seeskin's description of Cohen's:

“The history of religion,” as Cohen points out near the beginning of the book (p. 20), “has no means whatever of securing the legitimacy of religion.” To accomplish the latter, one must approach the sources in a critical way and defend the ideas contained in them. The goal, then, is to be instructed by the sources rather than simply guided by their authority (p. 4).

Seeskin, Kenneth, How to Read Religion of Reason, in Cohen, at 21Google Scholar.

28. For a comparison to whatever lesson derives from Abraham's apparent blind faith in the binding of Isaac, see the extended treatment of the debate (consisting of what appear to be reasons and evidence) between Abraham and God over God's planned destruction of Sodom and Gomorrah, in Susan Neiman, Moral Clarity: A Guide for Grown-Up Idealists (Harcourt Trade Publishers 2008)Google Scholar. The Talmud contains a story in which the rabbis are debating a particular interpretation of the law. One of the rabbis calls on a series of supernatural events to prove he is right, the last of which is God's voice booming from the heavens. Even this is insufficient to seal the argument, however, on the theory that God spoke once at Sinai, and after that, these matters were decided by the majority. According to the prophet Elijah, God's reaction to that argument, which denied God's own authority, was to laugh and say, “my children have defeated me, my children have defeated me.” Bava Mezia 59b.

29. Caputo, John D., Demythologizing Heidegger 189 (Ind. Univ. Press 1993)Google Scholar.

30. Id. at 192-96.

31. Id. at 193.

32. Id. at 196, quoting Derrida, , Force of Law: The ‘Mystical Foundation of Authority,’ 11 Cardozol. Rev. 919, 961–67 (1990)Google Scholar.

33. Gibbard, Allan, Thinking How to Live (Harv. Univ. Press 2003)Google Scholar.

34. Id. at 284.

35. Id. at 284-87.