Should the State Still Protect Religion qua Religion? John Finnis Between Brian Leiter and the “Second Wave” in Law and Religion

This article offers a Thomist response to Brian Leiter’s Why Tolerate Religion?, challenging his claim that religion does not merit distinct legal protection. While Leiter assumes religion to be epistemically irrational—defined by existential consolation, categorical demands, and insulation from evidence—this article draws on John Finnis’s interpretation of Saint Thomas Aquinas (d. 1274) to reconstruct religion as a basic good of practical reason. It proposes a three-tiered model of religion—as human quest, natural religion, and revealed religion—which clarifies religion’s internal structure and civic relevance. Developing this model against Leiter’s critique, this article shows that religion, so understood, can be legally protected even on Leiter’s liberal terms, through both Rawlsian and Millian frameworks. The article also extends its argument to “second-wave” law-and-religion controversies, illustrating how a Thomist framework illuminates debates about ideological establishments, identity politics, and public reason. Through original syntheses and rigorous normative analysis, this article advances a conceptually fresh and publicly accessible model of religion for law and public policy. It also speaks to pressing constitutional debates in the U.S. and Europe, thus contributing to transatlantic jurisprudence on religious freedom and the moral purposes of law. Religion still matters—and must be understood—not as conscience, but qua religion.