The politics of religious freedom:

Social eugenics, unintended consequences, and dropped balls

posted by Greg Johnson

These essays provoked me in a number of ways, especially with their combined penchant for probing raw nerves. Indeed, I didn’t fully understand how raw—let’s say conflicted—I was about religious freedom discourses and practices until this intervention was staged. In the spirit of therapy, then, we can begin: “Hi, my name is Greg, and I’ve led a carefree lifestyle, all along assuming religious freedom is a good thing. I’ve been drinking this cocktail for years; it has become part of my identity. Thanks to these scholars, I’ve been sober for three days.”

More seriously, these papers put a finger on a tension many of us face in our work, whether conceptual or practical: namely, a sense that religious freedom, in principle, must surely be good, but that in practice it has many possible outcomes, intended and otherwise. Furthermore, these papers argue that the routinely problematic social lives of religious freedom agendas should cause us to reconsider the conceptual genealogy of the ideal itself. Indeed, these papers cut so deep as to have us ask: Is there a “principle” of religious freedom that stands above or beyond histories, political agendas, and the sundry entailments of these? In their own ways and in their conjoined force, these papers provide ample reasons for extreme caution when proceeding down the path of announcing, promoting, and analyzing religious freedom agendas.

I am sensitive to this cautionary message, but can imagine some good reasons for saying, “Hold on, might there be more to the story?” My work in indigenous traditions has conditioned me to be very sympathetic to native religious freedom claims, especially in contexts of land disputes, resource access, and burial protections. I continue to think religious freedom claims have a place—at least in the short run—if their primary role is to secure rights already enjoyed by majority publics by making otherwise inaudible concerns heard. But I am certainly persuaded by the common trajectory of these fantastic papers, which together amount to a multi-layered critical assessment of religious freedom, its current lives and undergirding sub-strata.

Reading these papers, I couldn’t help but think of religious freedom projects as a form of social eugenics. The sought-after outcome of such agendas is to produce and reproduce a healthy social body—as defined by those who have the power to manipulate society at the level of policy. As these papers do so powerfully, analyses of religious freedom discourse and practice should ask: Who are the engineers? Who are the subjects? What are the outcomes of these experiments, intended and not? And, as Elizabeth Hurd asks, might there be other discourses and registers for pursuing shared goals that steer clear of these troubled waters?

These sorts of questions were posed to me in sharp relief on a recent trip to Odessa, Ukraine. I was there as visiting faculty for the ReSet School, a multi-year seminar on the study of religion, the students of which are from throughout the former Soviet Union and who range from Ph.D. candidates to associate professors. The particular session I attended focused on law and religion. It was a rewarding experience at a number of levels, not the least of which was gaining an ear for religious freedom discourses articulated in ways quite different from what I’ve become accustomed to in the U.S. context. Over the course of our week together, three basics rubrics about religious freedom emerged from the group. One seemed to carry forward a Soviet-era suspicion of religion and announced the importance of secularism and freedom from religion; another was a comparatively new and almost boundless enthusiasm for religion of all stripes—though its champions faced the usual difficulty of distinguishing between religion and not-religion, a bind for any religious freedom agenda no matter how capacious its imagination; and the third was an interesting mix of nostalgia for and desire to protect historically dominant traditions (the Russian Orthodox Church, especially) while simultaneously warding off the threat posed by assertive proselytizing movements, especially Jehovah’s Witnesses and the Church of Jesus Christ of Latter Day Saints.

As I discerned the contours of these positions I began to think of them in the following ways: No Cake, The Whole Cake, and Just Our Slice of the Cake. Of course, each of these positions wanted to eat their cake and have it, too. And that, as Winnifred Fallers Sullivan has argued in The Impossibility of Religious Freedom, is just the problem with religious freedom discourse in practice—it sets out its own conditions of impossibility and is constantly at counter-purposes with that which it proclaims to advance. In any case, each camp worked to articulate a vision for how its particular ideal of religious freedom could be designed, animated, and otherwise brought to life. From my position on the edges of the conversation—and I admit to having but a basic sense of the current social struggles involving religious life in the former Soviet Union—this all sounded quite a lot like social engineering. Such an ethnographic realization has the potential, of course, to catalyze self-recognition. So I began to puzzle over the ramifications of the politics of religious freedom contexts closer to home. I offer two brief reflections along these lines below.

From the side of lived religion, religious freedom contexts may likewise be understood as projects in social engineering. Religious actors and institutions routinely refashion themselves to meet the conditions of law or to inhabit spaces framed by law, as Saba Mahmood and Peter Danchin have described in the case of Egypt, for example. The contributors to the Politics of Religious Freedom Project  illuminate how law provokes religion, often in the direction of ossification, or its discursive equivalent, literalism. Of this dynamic, one might say that law prefers to take others, religions included, the way it usually takes itself, which is to say literally. In this way, religious freedom produces religious dogmatism. Some “religions” resist, of course. But the costs of remaining flexible, metaphorical, and open-ended can be high, like not being seen or being dismissed out of hand. As Hurd points out, one cost of recalcitrance is illegibility.

The contemporary global propensity to engineer religious life in relation to states and publics is also a mixed bag for scholars of religion. On the one hand, our jobs got easier. We need not be half as perceptive as we are trained to be. The characters on the world’s religious stage are now outsized versions of themselves—puffed up on steroids, battle ready, and putting on a hell of a show. On the other hand, some of us can’t shake the sense that this is a bit too easy and, hauntingly, that somewhere along the way we got worked into the experiment in ways we haven’t adequately understood, as Sullivan has suggested. Whether through support for or criticism of religious freedom agendas, some of us worry about the degree to which we are engineers or have been engineered. Needless to say, we all have some sorting out to do.

Now I’d like to shift gears and suggest two ways the issues opened up by the Politics of Religion Freedom Project and by the essays collected here are relevant to contemporary Native Hawaiian religious life. My first brief example concerns articulations of genealogy in a contemporary legal context (which I have described in detail elsewhere). Suffice it to say that the shape of the family and family law in Hawai`i changed in the wake of colonialism: genealogy isn’t what it used to be. Missionary sensibilities and Victorian law completely reengineered these domains, as Sally Merry has described. But today Hawaiians are engaging vast realms of cultural life with deliberate emphasis upon restoring ancestral integrity to contemporary ways of being. This “renaissance” includes, among other things, subsistence practices, language immersion, hula, open ocean sailing, various forms of rejuvenated ritual practice, and the protection of ancestral burials, about which I’ll say more below. Some of these endeavors have yielded legal and political traction. By way of various federal and state laws, policies, and entities like the Office of Hawaiian Affairs, native cultural and religious ideals and practices inform day-to-day matters, like land use and fishing rules.

Unfortunately, the laws and policies that make room for Hawaiian voices have little capacity to comprehend the cultural content of the stories they have solicited. The stories connect to different times, to different sensibilities, to different sexualities. Royal incest, alternative spouse arrangements, and an incredible range of genealogical possibilities configure Hawaiian religious imaginations. Law is rather deaf to all of this. For one example of this mismatch—of law’s solicitations and foreclosures—consider the case of Mahi, which is a story about the costs of resisting law’s literalism. To be Hawaiian religiously is to read signs, to think metaphorically, to interpret oneself into history. Mahi did this and became illegible as a result.

The short version of Mahi’s story goes like this. A protracted repatriation dispute erupted in the early 2000s that involved the Bishop Museum and sixteen different Native Hawaiian organizations. The dispute centered on the so-called “Forbes Collection,” eighty-three extremely rare Hawaiian objects taken by non-natives from a burial cave near Kawaihae on the island of Hawai`i in 1905. For most of the twentieth century the objects were held by the Bishop Museum. In 2002, a group called Hui Malama, headed by Halealoha Ayau, received the objects on “loan” from the Museum. Members of Hui Malama then replaced the objects in their original burial cave location and sealed the cave afterward. Soon other Native Hawaiian organizations complained that they had not been consulted about the disposition of the objects and pointed out that the “loan” circumvented federal repatriation guidelines. The dispute became the subject of several Native American Graves Protection and Repatriation Act (NAGPRA) Review Committee meetings and then a court battle. It is a fascinating story with many turns, including the fact that a federal judge ordered the cave opened in 2006 and had the objects returned to the Museum, where they remain today while the competing Hawaiian groups work toward an agreement about their proper future.

My point in recounting this is to draw attention to Ayau’s next move. The sixteen contending Native Hawaiian groups had asserted their claims by way of “cultural affiliation.” A stronger claim under the law is by way of lineal descent. The law stipulates that lineal descent may be demonstrated by Western bureaucratic means—birth certificates, tax records, etc.—or by traditional genealogical means. In the dispute at hand, if anyone could articulate a persuasive lineal descent claim, they would trump all cultural affiliation claims and control the disposition of the objects. As it happens, in the late 2000s Ayau was made aware of the Mahi `ohana, a family from the region of the cave that asserted that the burial cave in question was their ancestor’s. In the course of researching their claim Ayau was told by a prominent genealogist the he too was related to Mahi. Ever resourceful and dramatic, Ayau gathered as much evidence backing this claim as he could and then presented it to the NAGPRA Review Committee in a most traditional fashion: he spoke as Mahi. This first person accounting of the ancestors is a classic Polynesian trope, something Marshall Sahlins has called “the heroic I.” Oratory in this capacity speaks the concerns of the present in the voice of the ancestors. It is also, manifestly, a discursive impossibility so far as scientific entities and legal bodies are concerned, judging from the baffled response of the Bishop Museum and the Review Committee. They didn’t so much reject Ayau-as-Mahi as ignore him. Flesh and blood genealogy was simply too much to take, or at least to take in. Law, it would seem, didn’t recognize whom it had invited to the table.

My second brief Hawaiian example responds through redirection to Sullivan’s emphasis on the Smith decision and its fallout. My point is: if Smith then Lyng. I think Sullivan is completely right to direct us to Smith and its progeny. Undeniably, this is the world Smith made; more modestly but significantly, this is also the world Lyng made. Lyng v. Northwest Cemetery Association (1988) was a Native American sacred lands dispute from the Smith era that made clear that the U.S. wasn’t about to budge on the control of “its” lands. While devastating for American Indians’ claims upon public lands, what Lyng has yielded in some circles is increased attention to consultative processes between native groups and the government in the context of land use and access. This consultative spirit also configures repatriation and burial protections contexts, at least in the U.S. by way of the NAGPRA and state laws, including in Hawai`i.

Consultation between native groups, the government, and various other parties has rightly been celebrated as a step forward in taking indigenous claims seriously, especially with regard to religious evidence and oral tradition. In a substantial number of cases, contesting groups have reached mutually agreeable settlements that take into account religious sensibilities in ways lost by the rougher handling of law proper. But meaningful consultation necessitates a case-by-case approach and is therefore administratively cumbersome, time intensive, expensive, and very taxing on the patience and good will of all parties. My worry is that post-Lyng laws and policies that stipulate consultation do not adequately set out support for this process in the long run. Changing administrations, financial crises, and fading institutional memory, among other perils, can emaciate consultative processes, reducing them to a shadow of their former selves or, indeed, as is happening in Hawai`i, to nothing at all.

In Hawai`i, the state burial law enables considerable protection for Native Hawaiian graves and sets out a robust consultation model through monthly meetings of burial councils on the major islands. Historically, these councils have had strong Native Hawaiian representation and leadership. From the time of the law’s inception in 1990 to the near present, Hawaiian burials have arguably enjoyed more integrity than in any period since Cook’s arrival in 1778. However, in the last several years things have turned sour. The State Historic Preservation Division has dropped the ball on supporting the councils and has been weak in its implementation of the law in general. The state has failed to appoint council members in a timely fashion, regularly cancels meetings for lack of quorum or other administrative reasons, and otherwise has offered little oversight of key processes. Additionally and critically, the state has grown soft in its requirements of developers, particularly with regard to policing requirements for archaeological inventory surveys, a pillar of the law. Absent these surveys, developers can proceed as if the law doesn’t exist. In this context, then, we have the politics of religious freedom in another key: a dirge about administrative failure.

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