Religion, Freedom, and the Illusions of Law

The burdens of legal reasoning

Met with Professor Sullivan’s concern that the concept of “religion” is too unstable to bear the weight of coherent constitutional analysis, Professor Degirolami’s response teaches us, I think, something very interesting and important about the nature of law. He objects to the idea of getting “...past, or over, or somehow beyond religious freedom” on three principal grounds, all aimed at showing that the legal endeavour is not really all that concerned with that which consumes the academic study of religion. 

First, he notes quite rightly that for the purposes of legal analysis the text both exists and matters, such that the religion clauses compel the use of some concept of religion. Second, Professor Degirolami points to the problem of a large body of guiding case law that would be set adrift or rendered obsolete if we got “past” religious freedom: “what to do with precedent?” Finally, he emphasises that the “legal enterprise” is about managing social problems consistent with “historical and culturally contingent settlements” – there is a contingent social world to preserve and law’s task is to preserve it. 

I think that each of these points is descriptively valid and captures something real about the world of law. What I find fascinating is what these objections actually reveal about the struggle of law and its relationship to the academic study of religion (ASR). Note that all of these objections are rooted not in the reality of the social world that we find, but in the forms and commitments of the constitutional rule of law. What Professor Degirolami’s arguments provocatively reveal is that, despite folk understandings that law is concerned with the real world (often in contrast to the more esoteric academic disciplines), in the interaction of law and religion law is in fact the profoundly anti-realist phenomenon.

This is the heart of Sullivan’s argument in The Impossibility of Religious Freedom (2005), as I read it. In the Boca Raton case, the reality of how religion was practiced was indigestible in the forms and schemes of legal analysis. In the Hosanna-Tabor case, the complex contemporary reality of religious life in the United States is sacrificed in favour of resuscitating a “church” that can fill a role in the American constitutional drama of institutional separationism. All of this is concerned with the working out of the particularities of the culture of law’s rule (as it is peculiarly expressed in the United States), not the management of social facts. 

And so when anthropologists, historians, and other scholars of religion destabilize the category of religion and, in so doing, put into question the legal reliance on this category to generate some form of “freedom”, they are being the realists. We, as lawyers, are the ones with our heads in the clouds of our own conceptual commitments. The pathology of law in applying itself to matters of religious freedom is not a failure to ascend to ASR’s theoretical insights, but an inability to descend to the real. 

It is with those understandings in place that I receive Sullivan’s caution in her posting that “collecting a group of claims under the banner of religious freedom lacks a coherent justification and is thus vulnerable to political opportunism.” When undisciplined by reality, one might say, the authority and force arrayed in support for constitutional claims about religious freedom can be exercised in political, cynical, or even roguish ways. Professor Sullivan may intend this as a critique, urging that we actually abandon the terms and “find some other words”. I am satisfied, for the time being, accepting this analysis as an edifying and more satisfying account of how the constitutional protection of religious freedom works, one that raises a series of other important questions…

A curious culture of freedom

Here I want to seize upon a point that Dr. Bangstad introduces in his posting. In putting under critical scrutiny the idea of religious freedom, there are interesting things to say not only about “religion” but also about how “freedom” is configured. Dr. Bangstad points to a disagreement with Sullivan’s claim that “we are only free in the absence of the law, of the state.”; “[A]s a Norwegian drenched in social democratic traditions”, he is presumably drawn to a vision in which law and the state play a more constructive role in the pursuit of freedom. 

I find terribly interesting the way in which “freedom” shapes up when national debates about law and religion turn to questions of minority expressions of religious belief and practice. In Canada, as in many places around the world, issues concerning the display of religious symbols and the authority of religious law have been the subject of much public debate. One common thread in these debates has been concern over the capacity of those raised within minority religious traditions – particularly women – to exercise genuine choice.

The frequently articulated concern is that religion may serve as a constraint on choice, one that legal regulation can or should remove. When the discussion shifts into this mode, a curious thing has happened in the alignment of law and freedom. In debates about constitutional rights, once religion is framed as a constraint on the true autonomy of the legal subject, law and freedom align, as surprising as this is read against liberal political theory. In these debates, to be regulated by the law is the path to freedom; the law will make you free (and modern).  

If one holds this up to the Hosanna-Tabor case, the “freedom” in religious freedom starts to feel unstable too. When it came to the Church, freedom was to be found in release from the law. When it comes to minority religious practices and norms, freedom is found through submission to public law. 

The future of an illusion?

In his recent book The Illusion of Free Markets, Bernard Harcourt historicizes and disrupts the idea of free markets, showing that what appears to be highly economically regulated can in fact admit of much freedom, and what marches under the banner of “free markets” is in fact the product of insistent and saturating regulation. His purpose in so doing is not simply to urge us to cast aside the idea of free markets (though he does urge that), but to show that the illusion of free markets – an illusion quite untethered to the social facts of regulation and economic freedom or unfreedom – has enabled certain habits and practices of governance, most notably, the radical expansion of the American penal state.  

It’s in a similar direction of inquiry that this exchange on the PluRel blog points me.  [For Prof. Courtney Bender’s provocative reflections on Harcourt’s book and its relationship to “free market religion” see The Power of Pluralist Thinking at The Immanent Frame]  What are the political and social purposes or uses of the idea of religious freedom, when both religion and freedom are so unstable as social facts?  Who is empowered in a legal culture – or a transnational politics – focussed on religious freedom, and at whose expense? What patterns of governance does it enable? Or, as one important project has cast it, what are the politics of religious freedom?

Cases like Hosanna-Tabor or debates about the contraception mandate in the U.S.; the recent Charter of Quebec Values in Canada; disputes over religious education in Israel; and the export of religious freedom through discrete diplomatic offices all gesture to the political, social, and economic thicket that exists beneath many debates cast legally in terms of religious freedom. Debating matters in terms of religious freedom – or, for that matter, “secularism” – often serves to efface the issues of social and economic disadvantage, ideological struggle, and demographic change. That kind of abstraction is one of the most time-honoured functions of law. 

Benjamin L. Berger is Associate Professor at Osgoode Hall Law School