Religious freedom in the United States:

The impossibility of religious freedom

posted by Winnifred Fallers Sullivan

In the last week the US Supreme Court has acted in two religious freedom cases (Burwell v. Hobby Lobby and Wheaton College v. Burwell) in favor of conservative Christian plaintiffs seeking exemptions from the contraceptive coverage mandate of the Affordable Care Act. Liberals have gone nuts, wildly predicting the end of the world as we know it. While I share their distress about the effects of these decisions on women, I want to talk about religion. I believe that it is time for some serious self-reflection on the part of liberals. To the extent that these decisions are about religion (and there are certainly other reasons to criticize the reasoning in these opinions), they reveal the rotten core at the heart of all religious freedom laws. The positions of both liberals and conservatives are affected by this rottenness but I speak here to liberals.

You cannot both celebrate religious freedom and deny it to those whose religion you don’t like. Human history supports the idea that religion, small “r” religion, is a nearly ubiquitous and perhaps necessary part of human culture. Big “R” Religion, on the other hand, the Religion that is protected in constitutions and human rights law under liberal political theory, is not. Big “R” Religion is a modern invention, an invention designed to separate good religion from bad religion, orthodoxy from heresy—an invention whose legal and political use has arguably reached the end of its useful life.

The challenge, then, for American liberals is to explain how they can both be in favor of religious freedom for all and at the same time deny that freedom to Hobby Lobby and Wheaton College. Among other stratagems meant to solve this contradiction, the Court’s dissenters and their supporters have made various arguments to show that what Hobby Lobby and Wheaton College are doing is not, in fact, religion—that they don’t really understand how to be Christians. Real Christians, the dissenters and their supporters say, do not mix religion with business. Nor do real Christians seek to disadvantage others in the exercise of their religious freedom. Those arguments are embarrassing; more than anything else, they reveal the ramshackle structure of current religious freedom jurisprudence in the U.S. They expose the multiple legal fictions at the heart of any legal protection for religious freedom—legal fictions whose value is exhausted.

The need to delimit what counts as protected religion is a need that is, of course, inherent in any legal regime that purports to protect all sincere religious persons, while insisting on the legal system’s right to deny that protection to those it deems uncivilized, or insufficiently liberal, whether they be polygamist Mormons, Native American peyote users, or conservative Christians with a gendered theology and politics. Such distinctions cannot be made on any principled basis.

In his concurrence in Hobby Lobby, Justice Kennedy writes:

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief . . . It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.

High-minded words—words to make Americans proud on this patriotic weekend—but words that, in our constitutional tradition, have usually resulted in religious discrimination at the hands of the majority, not in the acknowledgment of religious freedom for those outside the mainstream. Both the majority and dissenting Justices in these two cases affirm—over and over again—a commitment to religious liberty and to the accommodation of sincere religious objections. Where they disagree is on what counts as an exercise of religion. Their common refusal, together with that of their predecessors, to acknowledge the impossibility of fairly delimiting what counts as religion has produced a thicket of circumlocutions and fictions that cannot, when all is said and done, obscure the absence of any compelling logic to support the laws that purport to protect religious freedom today.

The claims in Hobby Lobby and Wheaton College were brought under the Religious Freedom Restoration Act (RFRA). RFRA, passed overwhelmingly by Congress and signed into law by President Clinton in 1993, states that government may not “substantially burden a person’s exercise of religion” without meeting certain conditions. Justice Alito, writing for the majority in Hobby Lobby, describes RFRA as providing “very broad protection for religious liberty.”

As the majority notes in Hobby Lobby, and as many commentators have rehearsed, RFRA was enacted in response to the Court’s notorious 1990 decision in Employment Division v. Smith, a decision that severely limited the reach of the free exercise clause of the First Amendment. The Smith decision sparked a political movement to reverse that limitation, first with the passage of RFRA; then with a flurry of other federal, state, and local legislation; and finally with the emergence of public interest groups and a specialized bar to advocate for religious freedom at home and abroad. Smith mobilized a large public across the political and religious spectrum to focus on a perceived threat to religion in general. It was, importantly, not just a movement of the right, but one that encompassed groups representing many political and theological persuasions. Religion was given new life by this politics.

A great deal of ink has already been spilled in response to the decisions in Hobby Lobby and Wheaton College. It is important, in my view—particularly for those of us who study religion—to move beyond the culture-wars framing of most commentaries and examine why it seems obvious, even natural, to the justices in the majority and to many others outside the Court that Hobby Lobby is engaged in a protected exercise of religion and that for Hobby Lobby and many others, opposition to the use of contraception is the quintessential sign of the religious. What is the religious phenomenology at work in these cases and how does that religious phenomenology reflect changes to religion in the U.S.? It is the business of religious studies scholars to explain these phenomena, not to decry them.

The exercise of religion, as Justice Ginsburg suggested in her dissent in Hobby Lobby, might more usually be understood to be centered on activities such as “prayer, worship, and the taking of sacraments” by individuals. The government took a similar tack, imagining religion in such conventional terms, when it sought to deal with objections to contraceptive coverage by providing automatic exemptions to “religious employers,” which it defined in the regulations as “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” (Hobby Lobby Majority Opinion, slip opinion p.9)

To anyone who studies American religion, these churchy references seem astonishingly outdated: much—perhaps most—American religion today does not happen in churches. Many American Christians have, for a long time, engaged in a kind of DIY religion free from the regulations of church authorities. Their religion is radically disestablished free religion, defined not by bishops and church councils, but by themselves—ordinary Americans reading their Bibles, picking and choosing from among a wide array of religious practices. Indeed, Americans have always been incredibly varied, creative, and entrepreneurial in living out what they take to be their religious obligations—religious obligations that range far beyond the prescriptions of the mainline churches, which seem staid, contained, and tamed to the many who consider their own religious practices, unapproved by traditional religious authorities, to be alive with the spirit. They find their religious community and their religious fields of action in places other than churches—including the marketplace.

Justice Sotomayor claims in her dissent in Wheaton College to have “deep respect for religious faith, for the important and selfless work performed by religious organizations.” Why is the exercise of religion by Hobby Lobby any less deserving of Justice Sotomayor’s, or of the US government’s, respect than the work of the Catholic Hospital Association or the Little Sisters of the Poor? Why should churches and religious orders be obviously and unproblematically exempt, particularly in the aftermath of a series of sexual and financial scandals, while Hobby Lobby is not? Why disdain the representations of the Greens and the Hahns that they consider their businesses to be a religious ministry? Where is it written in the Constitution that only the religious practices of churches or church-related non-profits are entitled to accommodation?

Liberals seem offended by the mixing of religion and profit-making as well as by the obvious misogyny displayed here and elsewhere by a Court that sees the test cases of religious freedom in the protection of a male-only priesthood and the control of women’s reproductive lives.

How did a store become an expression of religion and how did being religious become equated with being conservative on social issues? The politics of religion in the U.S. is a complex story. Religion and business in the U.S. have always been entwined. In the first decades of the country’s existence, as both churches and business worked to institutionalize themselves, they grew up together, many of the same people involved in making the corporate form work for each. Their way of being Christians in the world infused their work as businesses with their Christian piety. By the last third of the nineteenth century, merchants like John Wanamaker saw the department store as a place for Christian action, but the growth of Christian business in the last several decades reveals the ways in which economic activity is increasingly viewed as a field of religious activity. Bethany Moreton’s To Serve God and Walmart: The Making of Christian Free Enterprise, Lake Lambert’s Spirituality, Inc., and Kathryn Lofton’s Oprah: The Gospel of an Icon, all describe this world. This is an old story, of course, as Max Weber explained in The Protestant Ethic and the Spirit of Capitalism. As for gender, Janet Jakobsen and Ann Pellegrini have shown in Love the Sin: Sexual Regulation and the Limits of Religious Tolerance how deeply intertwined are Christian ideas about proper sexual mores and government regulation of the family and of sexuality in the U.S.

That American religion is involved in business and obsessed with sex is not news. What is surprising is that those who object to this kind of religion continue to hold on to a faith in the idea that religious freedom means protection only for the kind of religion they like, the private, individualized, progressive kind.

The radical nature of RFRA and other post-Smith legislation—including the International Religious Freedom Act (IRFA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), and a host of legislative exemptions from otherwise broadly based legislation—was evident from the beginning. These laws promised a broad deference to religious reasons that had never, in fact, been available under the Supreme Court’s religion clause jurisprudence and that was impossible to implement. They invited a regime under which courts would necessarily have to do the impossible, that is distinguish an exercise of religion, necessarily dividing good religion from bad religion, all the while denying that that was what they were doing, a regime the Smith Court recognized as unworkable and refused to endorse.

All of this activity, legislative and judicial, has placed a heavy burden on the words religion and religious, words that are constantly repeated in both the majority and dissenting opinions in Hobby Lobby and Wheaton College. The adjective “religious” appears on virtually every page of the more than 100 pages of opinions, modifying a wide range of words. Likewise, the word “religion” seems to be both everywhere and nowhere. Is it really possible to distinguish the religious from the non-religious in these cases? Do we have a shared theory of religion that permits such distinctions to be made? Isn’t the religious always mixed with the political and the cultural and the economic? The constant repetition of the adjective seems necessary only in order to reify a notion about which everyone is, in fact, very uncertain.

As one example, Justice Ginsburg announces that, “Religious organizations exist to foster the interests of persons subscribing to the same religious faith.” It is not clear to whom she refers here. As with the other justices in this case and others, her Delphic pronouncements about religion seem to come from the ether. How does she know this? Few who study religion would agree with this statement. Religious organizations, if indeed such a set can be rationally collected, exist for a wide range of purposes and consist of and cater to a diverse group of people. Justice Sotomayor is sputtering mad about the Wheaton College injunction. She says that, while she does not deny the sincerity of its religious belief, the College failed to make a showing that filing a form requesting an exemption is a substantial enough burden to trigger a RFRA claim. Shifting to an argument about substantiality is an effort to avoid challenging the rationality of their religious belief, but that is exactly what she is doing. They say that filing the form is enough to make them complicit with evil. Who is she to say nay without getting into exactly the theological battle she is trying to avoid when she claims to respect them?

The notion that religion exists and can be regulated without being defined is a fiction at the heart of religious freedom protection. Legal fictions—such as the idea that corporations are persons—are, of course, necessary to law. For legal scholars as diverse as Henry Maine and Lon Fuller, the capacity of legal language to finesse the facts could be understood as making legal flexibility and progress possible. The startling unbelievability of legal fictions can also focus our attention on the limits of legal language in a salutary way. Yet legal fictions can be stretched too far. They can become nothing more than lies.

Religion also specializes in fiction. It is not just the corporation that has fictional legal personality. So does the church. Justice Ginsburg objects to free exercise protection being extended to “artificial entities,” referring to corporations, but religious freedom is all about protecting artificial identities. The church is an imagined artificial entity; so are gods and demons. The church is the body of Christ in orthodox Christian theology; like the sovereign, it is the quintessential legal fiction, as we learn from Ernst H. Kantorowicz in The King’s Two Bodies.

We need fictions to live. But when the church and the state went their separate ways—when the church was disestablished—the intimate articulation of political, legal, and religious fictions lost their logic on a national scale. They no longer recognize one another. The legal and religious fictions of religious freedom have become lies designed to extend the life of the impossible idea that church and state can still work together after disestablishment. There is no neutral place from which to distinguish the religious from the non-religious. There is no shared understanding of what religion, big “R” religion, is. Let’s stop talking about big “R” religion.

What remains, as Clifford Geertz reminds us, is for us to work on creating new fictions together, political, legal, and religious:

The primary question . . . now that nobody is leaving anybody else alone and isn’t ever going to, is not whether everything is going to come seamlessly together or whether, contrariwise, we are all going to persist sequestered in our separate prejudices. It is whether human beings are going to be able . . . to imagine principled lives they can practicably lead. (Local Knowledge p. 234)

Judges cannot do this work.

Thank you to Dianne Avery, Constance Furey, Elizabeth Shakman Hurd, Fred Konefsky, and Barry Sullivan for comments on earlier drafts of this essay.

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12 Responses to “The impossibility of religious freedom”

  1. avatar Mike Zimmer says:

    The “other” religion clause — the Establishment clause — has to be taken into account when discussing free exercise. The two religion clauses in the First Amendment reflect a truth that must be acknowledged: Without non-Establishment, free exercise is unlikely to persist. What is wrong with RFRA is that creates a tremendous imbalance that puts free exercise in jeopardy by allowing way too much establishment.

    The historic balance between free exercise and non-establishment has been that religious organizations are grouped together with other, non-profit charitable organizations that gain tremendous tax and other governmental assistance. Hobby Lobby blows through that accommodation by granting a governmental advantage to a profit making organization.

    Requiring a corporation to comply with laws that have nothing directly to do with religion maintains the appropriate balance between free exercise and non-establishment. Nothing in the ACA requires anybody to use contraceptives. The owners of Hobby Lobby have the same choice whether or not to use contraceptives as their workers. They can personally decide not to use them for whatever reasons they choose, including their religious views.

    Look at the history of wars involving religious beliefs and look today at the wars wracking the Middle East. We have pretty much avoided wars over religion here for a long time despite our tremendous variety of religious experiences. Why open this country to risks when the pre-Hobby Lobby balance between free exercise and non-establishment has seemed to work reasonably well over our history.

  2. avatar Avery M. says:

    Mike, that may be your take on the ruling, but it’s not the take of the National Organization for Women (NOW), who named and shamed plenty of non-profits attempting to exclude contraceptives from their health care plans—including a charity run exclusively by nuns: http://washingtonexaminer.com/article/2550562.

    I believe Ms. Sullivan’s point still stands quite well, and her analysis of the idea of “religion” in the dissents of Justices Ginsburg and Sotomayor does indeed indicate a cultural gap between the left and right in America.

  3. avatar Rhys Williams says:

    I always learn from Winnifred Sullivan and this post is no exception. It is clearly useful to point to the contradictions of a ‘liberal’ framing of religious freedom — in the sense of classical liberalism — and the current ‘liberal’ disdain — in the sense of contemporary ‘culture wars’ liberalism — for these SCOTUS decisions. The differences in the two forms of liberalism and the relative balance of individual autonomy/non-constraint with protections of the collective good is who gets subjected to the constraints involved in the ruling.

    In the 1990s Smith decision the majority argued that preventing a Native American from ingesting peyote did not unduly impinge on his freedom, but in Hobby Lobby requiring a corporation to pay — indirectly — for the potential of contraceptive use is too restricting. In both cases the ‘losers’ are those with fewer resources, less prestige, and more marginal to institutionalized power. We need a stricter rein on government regulation, apparently, when conservative, white, Christian business owners claim religious freedom than when Native Americans or other religious minorities’ interests are at stake.

    The post-Smith, RFRA coalition was able to be ‘bipartisan’ because who suffered the religious restriction was obscured. But Roger Finke, Ken Wald, and other researchers have shown a consistent tendency in post-Smith decision to limit the practices of religious minorities — and yet get dramatically expanded in this case with an altogether different type of plaintiff.

    I agree with Sullivan when she says: ” . . they reveal the rotten core at the heart of all religious freedom laws. . . You cannot both celebrate religious freedom and deny it to those whose religion you don’t like . . . Such distinctions cannot be made on any principled basis.” Thus we are pushed with complementing our analysis with an understanding of who ‘wins’ and who ‘loses.’ And in that regard both the conservative 5 and the dissenting 4 are pretty consistent.

  4. avatar Mike Mahoney says:

    We have a court that surreptitiously added two words to the First Amendment: ” except when,” with an open ended ellipse after that. What I’d like to know is where did they derive a just, amendatory power to do that? If one were to accept that the majority of cases were not to be adjudicated at the federal level because they would be adjudicated at the local level under common law, then one recognizes how these questions would be answered. Granted, this would result in a tapestry: One woven by self-governance, common law and liberty.

    Also, I thought the effort at making distinctions between “Big R” and “little r” religion was a step beyond being reasonably definable. The only possible way to do that is to empty the churches of individuals and call that with its paid staff “Big R” and everything else “little r,” reducing big R to a mere shell.

  5. avatar Dibyendu Nandy says:

    There is something inane about referring to the religious rights and freedoms of a corporation.

    Quoting Professor Sullivan:
    “The challenge, then, for American liberals is to explain how they can both be in favor of religious freedom for all and at the same time deny that freedom to Hobby Lobby and Wheaton College. ”

    The religious freedoms and rights of the OWNERS/Board of Directors/Executives/Administrators of Hobby Lobby or Wheaton College are not being trampled on. The employees of these organizations are entitled to fair compensation and a non-discriminatory benefits plan is a part of that compensation package.

    I question the validation of the SCOTUS ruling by Professor Sullivan. The underlying presumption of personhood rights by an entity (organization) which is not a human individual is something I would not expect of an academic with an objective perspective. Maybe therein lies the error of my thinking.

  6. avatar J Hood says:

    “In the 1990s Smith decision the majority argued that preventing a Native American from ingesting peyote did not unduly impinge on his freedom, but in Hobby Lobby requiring a corporation to pay — indirectly — for the potential of contraceptive use is too restricting. In both cases the ‘losers’ are those with fewer resources, less prestige, and more marginal to institutionalized power. We need a stricter rein on government regulation, apparently, when conservative, white, Christian business owners claim religious freedom than when Native Americans or other religious minorities’ interests are at stake.”

    I somewhat disagree with this. That majority fully understood the bombshell it was about to unleash and it would it would have ramifications on everyone. Including people that practiced a “majority faith.”

    If we had state versions of the RFRA (like the one passed in Mississippi) the main effect I suspect will be greater protections of minority religions such as Muslims.

  7. avatar Barbara Piper says:

    Thanks for this important set of considerations. I have also been troubled by the opacity of “religion” in both the RFRA and in Burwell v. Hobby Lobby and the willingness of the Court to allow anything anyone wants to qualify as “religious” to stand without challenge as “religious.” The belief that life begins at conception, fertilization, implantation, or whenever, is an interesting scientific debate, but it lacks any obvious and specifically religious content. To argue that a fetus is a “person” from this point or that is an interesting legal debate, but it also lacks any obvious religious dimension. As we know, to justify such beliefs on religious grounds is often a post hoc rationalization for things we find unpleasant or immoral.

  8. avatar Billy Maynard says:

    Thanks for this thought-provoking consideration of issues that strike at the core of our union. Three points.

    First, big “R” religion is not a modern invention. Actually, it is quite ancient, coming into form as an institutional construct of power during the early days of the Achaemenid dynasty under Cyrus. Big “R” religion was the basis of the compact with empire established by the Jewish people and largely sustained throughout the Second Temple age, a period spanning almost 600 years. The differentiation of power into “church” and “state” categories inherent in the Persian solution to establishing religiously supported extensions of the Hammurabi code as the basis of city-state law is the foundation of the issues we are still living out today. The challenges involved in “render(ing) to Caesar…and to God” have been with us for millennia.

    Second, little “r” religion is actually an issue of the further distinction between freedom of religion and freedom of (publicly expressed) belief. Now, this is the modern invention. While people may have always been free to believe whatever they might choose “in their secret heart,” they have certainly not been free to express those beliefs openly or bring them into the public square. In fact, this issue remains front and center in many Muslim communities where freedom of religion may have limited recognition, but the freedom to public ally express one’s personal beliefs public ally, is excluded if those beliefs (little “r”) are not in agreement with the prevailing community’s understanding of the big “R.” Justice Kennedy’s comments cited in the article actually capture this issue precisely, using the work “belief” instead of “religion”. My point is that what is new and really untested in human history is the extension of publicly-expressed freedom of belief, not freedom of religion. Laws clarifying this distinction were just passed in the past 20 years, and they are now being tested.

    Third, the modern emergence of freedom of belief as a public right of citizens returns us, paradoxically, to the situation that was at the root of the original Persian solution – that being the need for what I would call minority-favoring tolerance. While in the Persian era, this tolerance was a matter of the empire as a multi-cultural reality concerned with the peaceful settlement of subject peoples under the auspices if big “R” religion (written about brilliantly by Amy Chua), the issue today is that – under the auspices of little “r” religion – we are now all minorities. And this is where the flaw in the Hobby Lobby case is revealed in my opinion. The laws leave the court little choice but to treat claims of little “r” religion (which by definition is unbelief in big “R” religion) as though it is the same as big “R” religion. The unfortunate – and dangerous – result is an almost assured legal establishment of a society of intolerance, the very opposite of the founders’ intentions. Freedom of belief can, by definition, never entail the forced adherence with one’s beliefs on the part of others, and the fact that the state is being turned into a mechanism for accomplishing this outcome is a very real and present danger. This is why I consider a vital issue today not that of “church and state” but one of “state and belief.” Hopefully, our beliefs will not render moot all that which makes “of many, one.”

  9. avatar Joan Scott says:

    What about the question of whether religious groups and individuals have the right to impose their beliefs and practices on others? In the case of Hobby Lobby, to impose on their employees who aren’t believers? Or would you argue that Hobby Lobby has the right to discriminate against its employees on religious grounds?

  10. avatar Winni Sullivan says:

    Hi Joan. Thanks for responding. I don’t think there should be exemptions or accommodations on the basis of religious motivations for anyone–but if we do have them, we should notice the ways in which the result will be discrimination between what we consider good or aesthetically pleasing religion and what we consider bad or kitschy religion. In my view, there is no such thing as religion that does not impose its beliefs and practices on others.
    Winni

  11. avatar Barry says:

    “Liberals seem offended by the mixing of religion and profit-making as well as by the obvious misogyny displayed here and elsewhere by a Court that sees the test cases of religious freedom in the protection of a male-only priesthood and the control of women’s reproductive lives.”

    That’s…unperceptive. What liberals don’t like is when a for-profit organization can claim the privileges granted to non-profits along with all of the privileges granted to for-profits and, in addition, get waivers from labor law.

    “In my view, there is no such thing as religion that does not impose its beliefs and practices on others.”

    This is very, very poor logic. The question is not that; the question is to what extent it is allowed. And the big reason liberals are PO’d about Hobby Lobby is that the right has successfully allowed religious *employers*[1] to be more free to impose beliefs and practices on their employees.

    The whole point of labor law is to retrain employers.

    [1] White and right-wing religious employers; I doubt that the SCOUTUS Five will allow Muslims or liberal Christians such leeway.

  12. avatar Barry says:

    Winni Sullivan: “Why is the exercise of religion by Hobby Lobby any less deserving of Justice Sotomayor’s, or of the US government’s, respect than the work of the Catholic Hospital Association or the Little Sisters of the Poor? Why should churches and religious orders be obviously and unproblematically exempt, particularly in the aftermath of a series of sexual and financial scandals, while Hobby Lobby is not?”

    Because the first organizations are organized specifically as non-profits with a religious mission while Hobby Lobby is not.[1] The owners wanted to have the financial advantages of a for-profit stock corporation. They also, of course, wanted to have none of the limitations, but that just makes them human. What SCOTUS did was to offer certain people both sides of the law—namely white, right-wing, “christian” employers. Anybody else has not only no additional rights or privileges, but their rights and privileges were also curtailed.

    I am not a lawyer, but I’ve not seen anything from the right giving good grounds for limiting this decision.[2] It potentially destroys large swathes of labor law, and we see the right reframing old oppressions as “religious freedom.”

    [1] I’m tempted to say ‘and thus concludeth the lesson in the Book of Law, Chapter 1L’.

    [2] For example, why doesn’t this destroy the non-discrimination provisions of the CRA?

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