The politics of religious freedom:

The world that Smith made

posted by Winnifred Fallers Sullivan

Religious freedom is much in the air these days. In the coming weeks, The Immanent Frame will publish a series of reflections on religious freedom, beginning with four initial posts by a group of scholars involved in a joint research project that steps back from the political fray to consider the multiple histories and genealogies of religious freedom—and the multiple contexts in which those histories and genealogies are salient today. It is only the beginning of what will be, necessarily, an unfinished and complex effort. Talk of religious freedom, or a lack thereof, is always only part of a much larger story. We look forward to learning from the posts that follow.

—Elizabeth Shakman Hurd and Winnifred Fallers Sullivan, TIF guest editors

In November 2011 the United States Conference of Catholic Bishops announced the creation of a new Ad Hoc Committee on Religious Liberty to be led by William Lori, Bishop of Baltimore. Addressing his “brothers” in the conference, and citing a wide range of authorities including John F. Kennedy, George Washington, Alexis de Tocqueville, Pope Benedict XVI, and Learned Hand, Lori explained the need for the new committee:

For some time now, we have viewed with growing alarm the ongoing erosion of religious liberty in our country . . . Aggressive secularism is also a system of belief. In failing to accommodate people of faith and religious institutions, both law and culture are indeed establishing un-religion as the religion of the land and granting it the rights and protections that our Founding Fathers envisioned for citizens who are believers and for their churches and church institutions . . . Together, we will do our best to awaken in ourselves, in our fellow Catholics, and in the culture at large a new appreciation for religious liberty and a renewed determination to defend it.

From the evidence of this and other calls to arms by the American Catholic bishops, as well as the ringing endorsement they have received from a remarkably wide range of public figures, it seems that many Americans truly believe that a zombie-like phenomenon called “un-religion” stalks the land, promoted alike by “law” and “culture,” peddling aggressive secularism and displacing the rights the “Founding Fathers envisioned for citizens who are believers and for their churches.” What is needed, these bishops say, is recognition that “the freedom of religious entities to provide services according to their own lights, to defend publicly their teachings, and even to choose and manage their own personnel, is coming under increased attack.”

There is much that could be said about the history of the Catholic Church and its dedication to the defense of religious freedom. What interests me about the formation of a new Ad Hoc Committee on religious freedom at this time is the company that the bishops are keeping today—and why the bishops’ bellicose language accusing the Obama administration of mounting a war on religious liberty seems to make sense to such a disparate and varied group. Beyond the obvious self-interest, there is a genuine urgency to the bishops’ appeal, one that is legible to a surprising number of Americans.

The bishops are not alone in their anxiety. In the last couple of decades, numerous projects have been launched to advocate for religious freedom, in the U.S. and elsewhere, many warning of the dire consequences of failure. Suddenly, it seems, it is the protection of religious freedom that stands between us and descent into nihilistic oblivion. How did it come to be that so many current concerns are being traced to a lack of religious liberty?

It is not just Americans. Advocacy for religious freedom is a global phenomenon today, as my colleagues and others have detailed. And we have been here before. Religion and freedom are intertwined in the stories told about government in complex ways throughout history. A full accounting has yet to be done. Its salience now is also deeply and problematically connected to a post 9/11 politics of fear. In this post I will confine myself to the recent U.S. domestic context—and to only one thread in the multiple genealogies that I think have led us to this perplexing moment.

It is a commonplace in the academic study of religion to observe that the word religion is manifestly conditioned by the history of its use and that it is deeply problematic, epistemologically and politically, to generalize across the very wide range of human cultural goings-on that are now included in this capacious term. To speak of religion is to elide and conceal much that is critical to understanding the deeply embedded ways of being often denoted by the short-hand term “religion[s].” It is also common to note the very specific difficulty of definition that faces interpreters and enforcers of legal instruments purporting to protect and regulate the freedom of “religion.”

American Catholic bishops have had their own fraught history with religious freedom. They both wish to claim it for their own and distance themselves from its implications. By associating themselves with others they are always too in danger of losing control of the narrative and falling into what the anti-modernists in the Church identified as the sin of indifferentism.

There is a sense in which this all began anew two decades ago when the U.S. Supreme Court decided Employment Division v. Smith. Justice Antonin Scalia’s opinion for the majority in Smith (known as the peyote case) held that the free exercise clause of the First Amendment to the U.S. Constitution does not mandate a religious exemption, or accommodation, from neutral laws of general application that impinge on the activities of religiously motivated folks, even if such laws effectively outlaw acts that are understood by them to be religious duties—even sacraments.

The Smith decision was widely received by religious conservatives in the U.S. as effectively and finally revealing the implacable (and widely suspected since the school prayer decisions in the 1960s) hostility of the federal government towards religion. But, much more importantly, the coalition of more than sixty religious groups that came together—and quickly and successfully lobbied Congress to overrule Smith with passage of the Religious Freedom Restoration Act (RFRA) in 1993—included both liberals and conservatives. Indeed it included groups from across a very broad American spectrum, politically and theologically.

Baptists, evangelicals, Jews, Seventh-day Adventists, Presbyterians, Unitarians, Pentecostals, Quakers, and more. All agreed that religion itself—religion-in-general—was under threat as a result of the Smith decision. All recognized that what bound them together was that they were all threatened by the secularism made evident by Smith. What united them and enabled them to speak across the historical and cultural gaps that had previously divided them was that they were all “religion.” They needed to bury the hatchet and confront the enemy. Doing that was made easier by the fact that the ground had been prepared, and the consolidation of this alliance facilitated, by the emergence and popularization of a certain style of religious studies as a lingua franca for speaking about religious difference in the U.S. context. A lingua franca promoted by Huston Smith and others. Protestant-Catholic-Jew and Judaeo-Christian had morphed into “here comes everyone.”

Smith was a wake-up call. Smith suggested that religion in the U.S. had become complacent about its irenicism, inevitability and cultural entrenchment.

The effective institutionalization of the post-Smith politics changed the legal and political language about religious freedom in the U.S. and abroad. RFRA was specifically intended to reinstate the compelling interest test for religious exemptions. While subsequently declared unconstitutional with respect to the states, RFRA was followed by a raft of other more carefully drafted legislation, including the Native American Graves Protection and Repatriation Act (NAGPRA), International Religious Freedom Act (IRFA), and Religious Land Use and Institutionalized Persons Act (RLUIPA) at the federal level, as well as dozens of state laws—or as they are sometimes known, mini-RFRAs—all designed to provide robust protection for religion.

The aftermath of Smith also saw the development of a vigorous and well-funded specialized bar promoting the rights of religion.

While Smith most obviously led to a shift from constitutional appeals to the drafting of legislation (at every level—even local school boards), it has also arguably provoked a now further shift away from reliance solely on selective accommodations from secular law to robust jurisdictional demands for church autonomy or even church sovereignty. In a series of cases considering the constitutionality of school voucher programs and the faith-based initiative, the Court has held that the establishment clause does not prohibit the recognition and direct funding of religious institutions by government. There is a new accommodation between the two clauses, giving institutional religion—what might once have been considered “established” or “sectarian” religion—new legal definition and relevance.

American religious politics is not, of course, entirely produced by Supreme Court jurisprudence. But it is plausible, I think, to see Smith as a turning point in the consolidation of a broad religious alliance that is at work today, one which collectively opposes secularism while each member aggressively seeks to shore up its own ecclesiological position. There is a sense in which Smith’s comprehensive rejection of religious reasons invented religion anew—and gave new life to un-religion. Smith, in part because of the high-handed rhetorical violence of the majority opinion, and its refusal even to discuss Native American peyote use beyond a brief half-sentence reference, seemed to dismiss a carefully nurtured U.S. religious multiculturalism with the back of a hand. The response of U.S. religious groups has been impressive.

To what extent does a legal and political commitment to religious freedom imply a need for formal legal recognition of churches and other religious institutions? The most recent decision by the Court, Hosanna-Tabor v. EEOC, is interesting in part because it brings to the fore a troublesome leftover issue for Americans—and for others who would promote religious freedom—an issue with a long U.S. pedigree but one made newly relevant by the challenge of Smith. A radical version of U.S. disestablishment—never realized—suggests that churches in the U.S. are and have, from the beginning (whether in Puritan New England or at the time of the Constitution), been understood ideally to be entirely voluntary and private organizations that survive or not due to the enthusiasm and pocketbooks of their congregants (and God’s will), not trans-historical entities or public institutions legally defined and supported by the state. The fragile voluntarism of the free church now seems a slender reed on which to build a bulwark against un-religion. Older, tougher, ecclesia are being looked to.

A remarkable number and range of religious institutions filed amicus briefs on Hosanna-Tabor’s behalf. Briefs were filed by some regular filers in religion clause cases, others less so, some represented by well known First Amendment lawyers and advocacy organizations, others newer to the scene—many of them very strange bedfellows indeed. These organizations, like the RFRA coalition, represent a very wide range of religious positions, including evangelical Christians, Hindus, Muslims, Catholics, Mandaeans, Methodists, Presbyterians, Afro-Carribean religions, Jews, Mormons, and Lutherans. What seems to have brought them together is not so much the right of religiously motivated individuals to a conscientious exemption from laws that burden their religious practice, but a robust assertion of their corporate jurisdictional autonomy from the state.

The muscular hierarchical demand of the rights of churches and other religious authorities is arguably the world that Smith made. While some national and international human rights regimes may have moved toward a more individualistic model of protecting religious freedom, one that focuses on the sincerely formed consciences of individuals, religiously motivated groups in the U.S. may be moving the other way, back towards what in the U.S. used to be called establishment—that is, government support of “pervasively-sectarian” institutions—in a curious embrace of those churches, and the folks who run them, which once seemed the very antithesis of American evangelical religion.

There is a tragic quality to this situation. A broad-based critique of secularism feeds a romantic yearning for the presumed holism of intact and homogenous religious cultures. Churches and other religious authority structures can no longer rely on the conscientious dissent of their followers from majority cultures. They are demanding secular backup in their efforts to impose discipline. Many religious individuals meanwhile worry about whether the interests of organized religions can continue to serve as a proxy for their own interests.

The U.S. situation has a particular history, one that might be best described as one without a church or a state—and without the anticlerical politics that succeeded the legally established churches and absolute monarchies of Europe. It is “we, the people” who are in charge of both. Perhaps that is why Americans can be so naively cavalier about the reinstatement of the rights of religious authority by political authority—in the name of religious freedom—at a time when both are being undermined elsewhere by revolutions that do not fear so much un-religion as un-democracy. Promotion of religious freedom today may be undermining democracy, here and abroad. Not because democracy is necessarily secular, but because the religion defended by the bishops and other warriors for religious liberty, is autumnal rather than vernal.

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