I will talk about the U.S. because that is what I know. The differences between the U.S. and Europe in this area are real, and interesting, notwithstanding similar religious traditions and patterns of secularization. My own view is that this difference can largely be attributed to the peculiar nature of U.S. dis-establishment, but I am going to confine myself in this talk to the U.S. and to recent shifts in the messiness of first amendment jurisprudence.
I will focus rather on the pressure all of these activities put on the category of religion. It has long interested — and worried — me that this category seems to have gathered political and legal salience at the very time that it is being deconstructed by those in religious studies. The instability, indeed the incoherence, of the category of religion seems a slender reed on which to pin so many, often grandiose, hopes. I do not think that all claims made in the name of religious freedom are without foundation, or are unworthy of attention, simply that collecting a group of claims under the banner of religious freedom lacks a coherent justification and is thus vulnerable to political opportunism. I will talk about two American cases, twenty years apart, which illustrate some of the persistent difficulties in universalizing protection for religious freedom.
Anarchy in the cemetery
About ten years ago I completed a book analyzing the discourses about religion in a trial which took place in Boca Raton, Florida. The plaintiffs brought their case under a recently enacted Florida statute which prohibited government from substantially burdening a person’s practice of her religion without a compelling state interest and without using the least restrictive means. A range of legal issues were raised in the pleadings but the trial itself came to focus on whether what the plaintiffs had done counted as religion. Five academic experts in religion testified, including me: three for the plaintiffs, and two for the defendants. In the end the judge made his own decision as to what counted as religion, largely discounting the testimony of the experts.
There is much to say about this trial but, in essence, the book asks what happens if you take them at their word, those who say they want to protect everyone’s religious freedom, and that is what most religious freedom advocates today say that they want. In the state’s brief on appeal in defense of the Florida Religious Freedom Restoration Act (RFRA), Governor Jeb Bush made clear that virtually anything that anyone sincerely claims as a religious belief counts. Anything. The only conduct that is excluded is that “motivated by a secular belief or philosophy. (…) Simply because some individuals may not hold beliefs of ancient origin does not mean that these beliefs are not religious.”
I think it helps to have some facts. This is what happened to give rise to this litigation: Boca Raton has a municipal cemetery: Municipal regulations limit memorialization to small flat plaques flush with the ground facilitating maintenance and providing a clean aesthetic favored by cemetery designers and zoning experts. Over the course of some 15 years or so in the 1980s, the cemetery managers had allowed customers to construct home-made shrines on the graves. Eventually as many as several hundred such nonconforming memorials were constructed. After some time the city authorities decided to clean up the cemetery and remove the nonconforming memorials. Leaseholders of the gravesites complained unsuccessfully to the City Council, so a lawsuit was brought on their behalf by the American Civil Liberties Union (ACLU).
The plaintiffs in the case were a group of ordinary American Protestants, Catholics and Jews engaged in what we might today call DIY religion. For example,
- A Lebanese immigrant who calls himself a born-again Christian made a four-foot high wooden cross, covered with silk lilies, to place on his wife’s grave, as a witness, he said to their faith in the resurrection.
- A Jewish couple from the United Kingdom whose son had died young in a car crash, put a stone Star of David on his grave and surrounded it with a fence and plantings to prevent people from walking on it, as they said they had been taught Jewish law required.
- Two Cuban immigrant sisters whose brother had committed suicide placed a large statue of the Sacred Heart and planters with “offerings” of flowers on their brother’s grave. They visited and prayed for his salvation daily, because they believed that suicide was an unforgivable sin.
. . . and there were many more, carefully assembled but modest collections of statues, flowers, vases, inscriptions, crosses, stars of David. The aesthetic reminds one of roadside memorials at the scene of car accidents or the impromptu shrines built at the scenes of terrorist attacks. All of these assemblages were in violation of cemetery regulations but were tolerated, even at times encouraged by, the cemetery management who openly admired the care and piety of the plaintiffs.
The Boca Raton plaintiffs claimed that enforcement of the cemetery regulations “substantially burden[ed]” their “exercise of religion”. The City responded that what the plaintiffs had done was not mandated or required by their religions so that what they had done was not really an “exercise of religion,” in the words of the statute. What they had done amounted to nothing more than what the City repeatedly called “purely personal preference.” Allowing people to do what the plaintiffs had done would lead, they repeatedly said, to “cemetery anarchy.”
The City insisted on a showing of compulsion by religious authority, although the Florida statute had deliberately and specifically attempted to cure a frequently criticized aspect of federal RFRA jurisprudence in its section on definitions. Federal judicial interpretation of RFRA in some circuits had limited RFRA protection to practices “central to” or “mandated” by a particular religion. The Florida Act, unlike the federal RFRA, contains in its definitions section the explanation that an “exercise of religion” is “an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.” But, as you will see, that effort was defeated by the fear of anarchy.
The testimony of the plaintiffs was very moving. Eleven plaintiffs testified concerning their actions in the cemetery. They said that they had chosen the cemetery because they had admired the many personalized memorials already there, because it was close to their house or to their place of worship, and because they liked the religious pluralism of the cemetery. The immigrant plaintiffs talked about the lack of religious freedom in their home countries, fusing religious and political sensibilities. Each told how and why they had selected the items, items that made the small spaces holy and reminded them of the relatives who were buried there. Mostly, they referred to family tradition and religious upbringing to explain their choices. They all talked about their frequent visits to the graves.
The City insisted that the plaintiffs’ religions had not required them to build “vertical” memorials, that in each relevant religious tradition it was permissible to use flat memorialization. The City seemed to imply that religion is the kind of thing that if you look in one of the books belonging to a religion you will find a lot of rules about what you are supposed to do, including very specific rules about what to do on a grave, a kind of “guide to proper use”. If you are doing something that is not written down somewhere authoritative, the City further implied, then what you are doing is not religious. The religious person was, for the City, someone who follows rules.
Riffed religion
The plaintiffs and the religion scholars who testified for the plaintiffs described religious practices that were to some extent improvised, within certain parameters, to be sure, but the religious people they talked about were creative interpreters of their received traditions; people who riffed, if you like, on what they had been taught by their families, in religious education classes, or even on TV. Such improvisation did not make what they did any less religious
Three religion scholars testified for the plaintiffs and two for the city. The expert testimony about religion in this case is a story unto itself; who was chosen to testify, what they were asked, etc. Ambiguity about its value shares much with that of social scientific expert testimony generally. There was apparently little thought given by the lawyers to the disciplinary coherence of this testimony, and one could well ask what the evidentiary basis for our testimony was, the relevance even, but there we were, displaying religious studies in all its anarchic creativity; the nature of religion was almost totally up for grabs in this trial. Courts in a deregulated religious context have no authoritative way to structure religious knowledge. As became more and more evident as the trial progressed, everyone is an expert on religion in the U.S. Indeed, specialized knowledge about religion is suspect.
The expert in Jewish law, Michael Broyde, an orthodox rabbi who teaches at Emory Law School, gave the judge an eloquent introduction to Jewish legal reasoning. He testified that Jewish law is found in a number of places, in the Bible, in the writings of the rabbis, and in the customs of the people. He said that the things that the Jewish plaintiffs did to protect the grave, while not explicitly required by Jewish legal texts, were consistent with a tradition of Jewish burial practice that could be traced back to Jacob’s raising a monument to Rachel, as narrated in the book of Genesis. He talked of differences in the Ashkenazic and Sephardic traditions. But Broyde focused particularly on the concern expressed in Jewish law from the beginning of rabbinic Judaism about the removal of items that are already on a grave. The Emory rabbi readily agreed with the City’s lawyer that it would be legally permissible to have a Jewish grave without a raised memorial, but he was also emphatic that the writings of the sages are very clear that an existing burial site must not be disturbed or altered, because of the honor due that holy place.
The second expert who testified for the plaintiffs, John McGuckin, is an early church historian. Professor McGuckin teaches at Union Theological Seminary in New York. He is Irish, but born in England, and has since become a Serbian Orthodox priest. His shoulder length hair, and large pectoral cross, made quite a stir in the South Florida courtroom. One of the plaintiffs leaned over to me and said “It’s like having Jesus in the courtroom.” McGuckin testified that what the Christian plaintiffs, Catholic and Protestant, had done was very typical of what he called Latin piety, that is, the religious practices of Roman Catholics in southern Europe. He also talked about the importance of gravesites to Christians since the earliest times.
I testified about U.S. religion, about the fact that without an established church, Americans are very much on their own in determining what religious practices they deem important so that it is not necessarily appropriate to look to textual or institutional authorities for a ruling on what religious practices are important in a particular person’s religious life. In closing, the lawyer for the City recalled my testimony:
At the end of the trial the last question that I asked of Winnifred Sullivan, I think, takes us to a very helpful point. I asked her what would the Boca Raton cemetery be like if we adopted your approach, which is that any religious shrine or any shrine that is put on these graves by people, and they say that they are motivated by their religious beliefs, what would the Boca Raton cemetery look like? And she said it would celebrate, maybe these are not her exact words, but it would celebrate the diversity of the religious beliefs in Boca Raton. And really what that told me was that the position that the plaintiffs are taking, and their experts are taking, is to create a situation where basically you would have cemetery anarchy.
The City’s lawyers also called two scholars of religion. They testified not as experts in particular religious traditions but as experts on religion in general and were each asked to devise tests that would tell a court when a particular religious practice was protected by the statute.
The first of the city’s religion experts, Nathan Katz, testified that religion can be divided into two types: “high” religion and “low” religion. “High” religion, he said, is textual, institutional, and male. “Low” religion, he said, is oral, home-based, and female (I am not making this up!). Plaintiffs’ practices at these graves, he said, were “low” because Protestantism, Catholicism and Judaism – his words – do not have text-based rules requiring their adherents to place vertical memorials on graves. The first kind, “high” religion, should be legally protected, he said. The second could not be. The second of the city’s experts in religion described religious practices as falling either near the center or near the periphery of a particular religious tradition. What the plaintiffs had done, he said, fell near the periphery. Those near the center should be protected while those at the edge should not be.
There is a theatre of the absurd quality to all of this. One result of the application of this kind of process to determine whether a person’s actions are religious is to suggest that people do not really understand their own religion, and that the courts do. In the end, although Judge Ryskamp said often during the trial that Americans were completely free to believe whatever they liked, the federal court set itself up as a court of heresy, ruling eventually that plaintiffs’ practices were not sufficiently orthodox to deserve protection.
The indispensable Church
The most recent major religion case decided by the US Supreme Court, Hosanna-Tabor v EEOC (2012), allows a glimpse into another difficulty with universalizing religious freedom and into one of the persistent shadowy structures that makes freedom so elusive.
In a recent NYRB review (May 9, 2013) of Garry Wills’ new book advocating an end to the Roman Catholic priesthood, Why Priests?, William Pfaff argues that it was the invention of the church that permitted the separation on which “Western political civilization . . . flourished,” contrasting that civilization with what he terms “Islam’s failure to separate state from religious authority.” This is not a new argument, but it is quite starkly put in the context of Wills’ frustration with the flaws of the Roman tradition. Even in its ramshackle state, “the church” apparently remains indispensable to the political structures of the liberal tradition.
The indispensability of the church poses a particular problem for the U.S. While in many European countries the church remains enough of a material and bureaucratic presence to arguably function as a partner for separation, separation in the U.S. lacks such a structural container for the religious. Having thoroughly disestablished the churches, and the religious governments of other traditions, turning them over to the people, not to the priests, the U.S. has a persistent problem in conceiving of what separation can be. We, the people, are in charge of both church and state. We mingle our religion and politics as we choose, even while we continue to cling at times to the Jeffersonian evocation of separation.
In the U.S. constitutional order with respect to religion, separation serves the two clauses of the First Amendment differently. For purposes of the free exercise clause, separation enables exemptions by setting religion off as special. The religious individual or group is understood to be entitled to special consideration in the application of laws otherwise of general application. For purposes of disestablishment, on the other hand, separation enables the pretense that government is secular and neutral with respect to worldviews. The Court has recently and increasingly rejected the threat of establishment and linked earlier establishment clause doctrine to an anti-Catholicism that is now outdated. So, before Hosanna-Tabor, it seemed that both liberals and conservatives on the Court had decided that religion could no longer be viewed as distinct and embodied enough to justify separation for either free exercise or establishment clause purposes.
The Exceptional Ministry
How then, to explain the decision in H-T? H-T originated in an action alleging retaliatory dismissal in violation of the Americans with Disabilities Act (ADA), brought by the Equal Employment Opportunity Commission (EEOC) on behalf of Cheryl Perich, a disabled schoolteacher, who was fired for asserting her rights. The Court held that the ministerial exception, an exception to employment discrimination laws developed in the lower federal courts, exempted the school, a Missouri-Synod Lutheran elementary school, from the reach of the ADA. The Court’s reasoning hinged on its understanding of the freedom of “the church,” a freedom which, it says, predates passage of the First Amendment.
In a startlingly Christian majority opinion, the constitutional underpinnings of the ministerial exception to employment discrimination law is conjured from a strangely short-circuited account of English church history. “The church” appears in Hosanna-Tabor as the mystical body of Christ, as a transhistorical reality, inserted into American constitutional theory, arguably for the first time, a figure at once timeless and potent as an historical actor. The last sentence of the Court’s opinion in Hosanna-Tabor announces the dogma that binds the majority opinion. Affirming the constitutional status of the ministerial exception, the Chief Justice declares that “The church must be free to choose those who will guide it on its way.” Not “persons” must be free to choose their own ministers, but “the church” must be free. What, then, is “the church?” The Court is speaking theologically and dogmatically: “The exception (...) ensures that the authority to select and control who will minister to the faithful, a matter ‘strictly eccle-siastical’, is the church’s alone.”
The majority opinion in the unanimous decision from the Court in the Hosanna-Tabor is supported by a curious mash-up of religious and political history. The villain of the piece is Henry VIII: Before the Act of Supremacy, we are told, the church in England had been free, at least since 1215, thanks to King John and the Magna Carta. The church was free, we are further informed, because King John had agreed that the church had the freedom of election to church offices. According to the Court, Henry VIII interrupted that freedom with his break from Rome. The church was not free again until the Puritans and the Quakers arrived in the New World. The freedom of the church, both in England and after 1607 in the English colonies, but particularly since ratification of the First Amendment can be summed up, as the Court describes it, in the capacity of the church to select its own ministers free of political interference.
Profound differences in Roman Catholic, Reformation, and Anabaptist ecclesiologies and understandings of the freedom of Christians are finessed in this breezy historical account. Slipping back and forth between “religious organization,” “religious institution,” “religious group,” and “church,” as well as posing the relationship of each to an also homogenized and ahistorical “state,” the Court manages to avoid the enormously fraught issue of what “the church” is and who speaks in its name at various times and in various places. King John, Henry VIII, James Madison, and William Penn, members of very different churches, are all understood to be speaking of the same special freedom for “the church” to select its own ministers.
Church history stops for the Chief Justice in 1791. After the truncated account of English church history, what is most striking in his opinion is the entire lack of acknowledgment of the remarkable changes to the churches that occurred in the American colonies. Disestablishment, division, revivalism, populism, pluralism, syncretism, and immigration profoundly changed American religion. After 1791, official Americans, when speaking of American religion, arguably can no longer descriptively—or, arguably, constitutionally—speak, as the Court does, of “the church” and its rights. The church has been disestablished.
Evidence for the Court’s high ecclesiology, that is, its theory of the church and of church governance, can be found in the way it interprets the Smith decision – the peyote case. Smith held that the free exercise clause does not provide exemption for religiously motivated persons from laws of general application because secular laws fall equally on the religious and the non-religious. The alternative, as Justice Scalia explained in his decision for the majority in Smith, is that each person would be a law unto his own. The Smith rule does not apply in Hosanna-Tabor, the Chief Justice explains, because, the issue is not one of the right of religious individuals to a special exemption from neutral laws, a right defended by many as being founded in the respect accorded to individual conscience in liberal legal theory, but of the right of “the church” itself:
It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.
It is worth looking at this paragraph very closely. What the Court says is that while the free exercise clause of the First Amendment provides no constitutional exemption from laws of general application for individual believers who engage in “physical acts” consistent with their religious beliefs, what many Christians term sacraments, the establishment clause provides an exemption for “the church” from such laws because by interfering with church governance the Court is interfering with “the faith and mission of the church itself.”
Here the Court speaks of the doctrinal priority of “the church,” and presumably, therefore, of its current earthly would-be representatives. Acknowledging that the ADA would seem to be a law of general application from which religious actors would not be exempt, Roberts explains that Smith concerned the constitutional status of “only outward physical acts.” The Court here seems to be saying that, as Douglas Laycock, representing Hosanna-Tabor, did at oral argument, that “the church” is prior to the sacraments because the church forms the consciences of individuals. Preserving the hierarchical discipline and right to autonomy of the church is structural to the U.S. Constitution evident in the priority which disestablishment, read as a rejection of Henry VIII’s rejection of the Pope in the Act of Supremacy, has to free exercise in the ordering of the religion clauses in the First Amendment itself, while acts performed in obedience to the religious conscience of the individual must bow to secular law.
By reading its version of theology and church history into the First Amendment, the Court is enabled to give priority to the rights of some Christians through its evocation of “the church.” But that history also enables a denial of rights to other Christians as well as to non-Christians. Freedom from hierarchical church discipline arguably accorded to American Christians by the religion clauses is disregarded in favor of a strong assertion of the rights of the church.
Justice Alito’s concurring opinion, the only one evincing concern for the Christian exclusivism of the majority opinion, begins the project of expanding the discussion beyond the church. “Minister,” Alito states, is a term that is mostly limited to the Protestant churches. His solution to this problem is to define minister functionally and universally, assuming that such a role can be found in all religious traditions—and beyond.
Alito, with the EEOC, sees the rights of religious organizations with respect to ideological control of their members as similar to that of all other voluntary associations, a right founded in the freedom of association expressed in the First Amendment, not in the rights of religion: “Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.” This turn to the voluntariness of American religious life corresponds much more closely to what disestablished religion looks like in the U.S. today and to how most Americans understand their relationship to religious communities, one not of top-down hierarchy but one of bottom-up participation. It is also rooted in another reading of the history the Majority tells, one that tells a story of the freedom of Christians, and eventually of non-Christians as well. It is an understanding that sees Ms. Perich as the possessor of rights, not “the church.”
From the delicate messiness of DIY religion to the robust solidity of the church militant, laws intended to protect something oxymoronically titled “religious freedom” are constantly bumping up against the unstable collection of social facts that have come to be assembled under the word “religion”. Perhaps the freedom that is needed is freedom from the often unacknowledged flotsam and jetsam of religio-political history that the word carries with it. Let's find some other words.
Winnifred Fallers Sullivan is professor of religious studies and chair of the Department of Religious Studies at Indiana University, Bloomington
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