First published September 13 2013 at: http://blogg.uio.no/prosjekter/plurel/content/the-trouble-of-thinking-about-religion-and-law
There are few contemporary legal scholars who offer more profound and incisive analysis of the relationship between law and religion in the USA and elsewhere than Professor Winnifred Fallers Sullivan. My own familiarity with Sullivan’s work came via the anthropological scholar Talal Asad, whose work on the vexed relationship between the sovereign nation-state, the secular, law and religion, elaborated in monographs such as Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam (1993) and Formations of the Secular: Christianity, Islam and Modernity (2003) provides an important lens through which to approach Sullivan’s seminal work.
For Asad, ‘the secular’ and the ‘religious’ in any societal context stands in a relationship of co-imbrication and mutual constitution. Anthropologists know by now that universal definitions of ‘religion’ are unsustainable from an analytical point of view, given the extremely wide range of practices which passes for ‘religion’ in most human societies. Yet for Asad, the central point about ‘law’ and ‘religion’ is that it is “…the asymmetry of power between the secular state and what it defines as ‘religion’ which articulates the sovereign power of the state” (Asad 2006: 505). In Asad’s view, modern secular cultures also have their own sacred geographies (Asad 2003: 301), so much so that the sacred “is not only an essential part of religion but also of the secular” (Asad op. cit.: 26).
The Sacred Constitution
I would venture the guess that Sullivan and Asad would concur with me in the view that few parts of modern secular cultures in contemporary US society is considered more sacred – to believers and the non-believers alike – than the Constitution. Its sacredness can also be seen as taking the form of an almost religious devotion to the original letter of the law, as enshrined in the so-called ‘originalist’ position advocated on the current US Supreme Court by the Reagan appointee, Republican and conservative Catholic Supreme Court Judge Antonin Scalia. As an outsider one is struck by the similarity between the literalist approaches to reading, interpreting and applying religious foundational texts said to be characteristic of fundamentalist movements throughout the world, and that of the originalists’ approaches to reading, interpreting and applying the US Constitution.
As one of Scalia’s senior liberal colleagues on the Supreme Court, Ruth Bader Ginsberg pointed out in a recent interview with The New Yorker, it is not as if Scalia and his originalist colleagues can be absolutely consequentialist in applying their doctrine, for that would in fact entail advocating the right to hold slaves and subjugate women that the constitutional founding fathers enjoyed.
There are as a matter of course, virtually no state in existence in the world which does not in some way or other define and limit the exercise of freedom of religion and the right to religious assembly. As Sullivan reminds us in the essay Reforming culture: law and religion today (2012), in spite of the “…absolutist nature of the pronouncement with respect to religion in the [US Constitution’s] First Amendment”, and the widespread assumption among scholars and citizens alike that “…what is most distinctive about American religion is that it is untainted by association with the state or the law”, legal deregulation of religion – also known as disestablishment – “…does not mean the absence of law or the absence of regulation” (op.cit.: 335, 321, 322). Or as Sullivan phrases it in The Impossibility of Religious Freedom (Sullivan 2005); “religion is not limitlessly free in any human society, even in the United States” (op. cit.: 155).
The ‘religion clauses’ of the First Amendment of the US Constitution provide exceptionally strong legal protections for the free exercise of ‘religion’ in the USA. On Sullivan’s view, “while it is today popularly understood that some religious practice is not protected, that set is understood to be very small, encompassing only extremely antisocial religious practices” (Sullivan 2012a: 321, ftn. 7.) The seminal contribution of The Impossibility of Religious Freedom is – to my mind – to take the critical inquiry about the law and ‘religion’ one step further by asking the very fundamental question about what legislatures and courts do when they try to define and delimit ‘religion’. For as she asserts in the introduction, “…courts need some way of deciding what counts as religion if they are to enforce these laws [on freedom of religion]” (op. cit.: 3). In conclusion, she notes that “…legal protection for “religion” anywhere demands a definition of religion” (op. cit.: 151).
Secular law, for Sullivan, as for Talal Asad, is in many respects historically a rival to ‘religious’ laws and authorities: “…Law continues to be understood by many to derive its authority and definition exclusively from the sovereign modern state, pushing to the side and to the past many rival normative structures – including religion” (Sullivan 2012a: 319). In the introduction to the anthology After Secular Law (Sullivan, Yelle and Taussig-Rabbo 2011), the editors make the salient point that “…law’s claim to the universal resembles – indeed arguably derives its power from – the universalism that is claimed by a number of religious traditions, including, notably, Christianity” (op. cit.: 3). Sullivan’s normative point of view comes across when she some pages later in The Impossibility of Religious Freedom notes that “…‘law’ in a modern secular society ought not to be occupied with ‘religion’ in any way, but certainly not in such a way as to put courts in the position of defining which religious belief or practice is authentic, and therefore legally significant” (op. cit.: 10).
It is certainly a very bad idea, in my view, to expect courts anywhere in the world to enforce religious orthodoxy – even if, as a matter of historical and empirical record, many domestic courts throughout the world actually do this. I am less certain about the practical feasibility of expecting ‘law’ in a modern secular society not to be occupied with ‘religion’ in any way. Lest Prof Sullivan’s point here be misunderstood, let me hasten to point out that what she actually advocates is that “…religion, qua religion” not be made “…an object of specific legal protection…” so as to better realize freedom and equality and to defend liberty better (op. cit.: 138). If I have understood Sullivan correctly, one of her main conclusions is in fact that US courts at various levels cannot be expected to be a guarantor for the free exercise of religion, since ‘lived religion’ in our time and age of extreme religious plurality is well-nigh impossible to define and to delimit for the purposes of law and legal enforcement.
Drawing on the US Supreme Court’s verdict in Employment Division v. Smith (1990), Sullivan has recently argued that “…the [U.S.] Supreme Court, always reluctant to define religion, is now getting itself out of the business of deciding what religion is legal and what religion is not legal” (Sullivan 2012a: 321). Yet her sharp and concise reading of a recent U.S. Supreme Court case, namely Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Opportunity Commission (2011) also lends itself to the suggestion that the U.S. Supreme Court in the face of systematic litigation, lobbying and mobilization on the part of US religious organizations in the aftermath of Smith 1990 has re-instated a so-called ‘ministerial exception’, exempting religious employers from civil rights law and leaving it to religious bodies themselves to corporately determine what counts as their peculiar ‘religious doctrine’. Sullivan’s normative point of view on this matter puts here at odds with Supreme Court, which she clearly thinks has erred on the side of religious freedom in the Hosanna-Tabor case. The verdict rests, as Sullivan has rightly pointed out, on a Supreme Court jurisprudence in which ‘beliefs’ are subject to exemption from regulation by secular law, whereas ‘actions’ are not. The problem made starkly evident by Hosanna-Tabor is in Sullivan’s view that it violates a common-sense liberal view which would see Mrs Perich to be the possessor of rights, and not the church to which she once belonged.
A View from Norway
To a Norwegian, the Hosanna-Tabor case, along with Snyder v Phelps, illustrates an excess of absolutism and literalism on the U.S. Supreme Court which has pernicious effects on very basic human rights, including rights to life and dignity, of individuals subjected to law. For here, clearly, we see the law as a weapon of the strong. Yet as a Norwegian drenched in social democratic traditions, I cannot endorse Sullivan’s rather anarchical and Foucauldian view to the effect that “…we are only free in the absence of the law, of the state” (Laborde and Sullivan, forthcoming). Nor do I think that doing away with the very concept of ‘religious freedom’, as Sullivan advocates, is possible, nor desirable.
Ultimately, there is a more hopeful story in the subtext of Hosanna-Tabor, namely that of a relatively powerless woman asserting her rights, following her conscience, and in possible defiance clearing the path towards an understanding of “law” in which violations of these kinds rationalized and legitimized by reference to “religious doctrine” and the legal exemptions that invocations thereof enable may be more difficult to uphold in a U.S.A. in which the power and influence of conservative evangelical churches may slowly but surely be dwindling. That is perhaps small comfort to Mrs Perich, who might for all that we know not necessarily look forward to this at all, but surely something. On a final anthropological note, one hopes to hear more from Sullivan about what happened to Mrs Perich in the aftermath of Hosanna-Tabor.
Asad, Talal (1993). Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam (Baltimore: Johns Hopkins University Press). Asad, Talal (2003). Formations of the Secular: Christianity, Islam and Modernity (Stanford: Stanford University Press). Asad, Talal (2006) ‘Trying to Understand French Secularism’, in Hent de Vries and Lawrence E. Sullivan (eds) Political Theologies: Public Religions in a Post-Secular World, 494–526, 763–72. New York: Fordham University Press. Bangstad, Sindre (2009). ‘Contesting Secularism/s: Secularism and Islam in the Work of Talal Asad’, Anthropological Theory 9 (2): 188-208. Brekke, Torkel (2012). Fundamentalism: Prophecy and Protest in An Age of Globalization (New York: Cambridge University Press). Laborde, Cécile and Winnifred F. Sullivan (forthcoming). ‘Dialogue on The Impossibility of Religious Exemptions’, Forthcoming in Qaderni Di Dritto E Politica Ecclesiastica 2013. Sullivan, Winnifred F. (2011). ‘Going to Law’, The Immanent Frame (SSRC Blog), 13.10.11. Sullivan, Winnifred F., Robert A. Yelle and Mateo Taussig-Rabbo (eds.) (2011). Introduction. In Sullivan, Yelle and Taussig-Rabbo (eds.) After Secular Law. Stanford: Stanford University Press. Sullivan, Winnifred F. (2012a). Reforming Culture: Law and Religion Today. In Robert A. Orsi (ed.) The Cambridge Companion to Religious Studies 319-358. New York and Cambridge: Cambridge University Press. Sullivan, Winnifred F. (2012b). ‘The Church’, The Immanent Frame (SSRC Blog) 31.01.12. Toobin, Jeffrey (2013). ‘The Heavyweight’, The New Yorker March 13.