One of the clearest memories I have from the time when these matters were breaking in the news is of an encounter I had in the hall of the University of Chicago Divinity School. The air was thick with the subject of clerical sex abuse. Passing me in the hall, my interlocutor said, simply, “Call the police.” That was the entire conversation. I have not talked about it with him since. I am not even entirely sure what he intended, but I will take him to have been invoking a very American separationist model of church-state governance. Sexual abuse of minors, he implied, was police business, not church business. The entire matter could be resolved if everyone simply agreed to acknowledge the state’s jurisdiction over such situations and called the police.

Various historical, sociological, and psychological reasons can be offered for why the police were not initially called. Yet it is not just that almost no one called the police at the time. Even now, even after the police have been called, to read the documents in the BishopAccountability.org archive with the eye of a lawyer is immensely dispiriting. While some awards have now been made, law has mostly been used to obfuscate and protect the church from harm. The church has attempted to manage these events without the secular authorities—through invocations of canon law, private negotiations, and confidentiality agreements—while the secular authorities seem to have been paralyzed by a stilted respect for the clergy, an imagined constitutional prohibition, the he said/she said quality of old memories, statutes of limitations, and a lack of clarity as to under what legal theory bishops might be held accountable for the actions of their priests.

I have come to think that the impulse to see the police as the solution masks a more fundamental problem. We live, after all, in the wake of the police having been called, and many priests having gone to jail. Many in the church remain deeply unsatisfied. Why is that?

As we explored during the intense couple of days of the Yale conference, what is now termed “the sex abuse scandal” can be seen as a point of convergence for a particular set of contemporary practices that grew up over the course of the twentieth century in American law and American religion. While this crisis is related historically and structurally to other times and places in human history, the scandal of this situation reveals a number of well-documented weaknesses in very specific institutional and interpretive contexts, including that of American law (selective prosecution, misuse of discovery, insufficient protection for children, exclusionary evidentiary rules), the U.S. Catholic Church (sexual and political naïveté, poor seminary training, administrative secrecy, and authoritarianism), and the corrosive effect of social scientific discourse. Finally, this crisis also highlights the ongoing inability of the U.S. to find a satisfactory arrangement for the legal regulation of religion and of religious freedom. (I will speak here of the U.S.; other related but distinct religio-legal stories can be told about the other countries in which clerical sex abuse has been documented.)

The received story is that the U.S. achieved religious freedom through the disestablishment of the churches. We nailed this one. Churches would attend to training virtuous citizens, and the state would attend to politics. Citizens would be free to worship as they chose. The state would protect private property. From the beginning there was friction about how Europe’s established churches, imported into the Americas, would function legally and politically in a democratic country without their accustomed formal relationship with government. But that, too, is now told as a success story. One triumphalist version is that the American Catholic Church, after having been sneered at in the nineteenth century by the Vatican for its questioning of the doctrine that salvation was only to be found in the church, traveled to Rome during Vatican II—in the person of John Courtenay Murray—and taught the church that religious freedom could be Catholic and that the church could flourish in a democratic society. It was a proud moment for the American bishops.

There remained unfinished business back home, however. The meaning of the religion clauses of the First Amendment was not nearly as clear as had been intimated by Murray. At the time of Vatican II, the U.S. was in the middle of what turned out to be a fifty-year experiment with tidying up church-state separation. During this time, the Supreme Court insisted that religion be separated and that, at least in some cases, religious exercise not be burdened by law. Religious freedom meant secular public institutions and a limited legal space for voluntary religious affiliation. But it now turns out that the Court didn’t really mean it. And perhaps the church didn’t really mean it either.

The Supreme Court has now apparently abandoned its effort at thoroughgoing separation. Today, the patchwork of regulatory privileges and silences that have, over two hundred years, largely enabled religious institutions to govern their own without secular intervention—to have a little piece of sovereignty, as it were—to get a legal pass from the authorities—to limp along with the tatters of their former hierarchical glory wrapped around them—remains largely intact. Whether it is Mormons, haredi Jews, Catholics, or even plain vanilla Protestants, religious folk in the U.S. benefit from a range of laws that make a special legal place for religion: tax laws, labor laws, zoning laws, etc. These privileges are numerous and they exist at many levels of government—municipal, state, and federal; there are thousands of protective laws. While there are challenges to this regime—and other private zones like the family, the university, and the hospital, which have also been penetrated by law—there is wide public support for the continuation of such privileges. At the same time, public support for and funding of religious ways of life and institutions have become plausible.

Having firmly rejected as impracticable the dominant European solutions of either single or multiple religious establishments, in which the division of public labor was expressed through jurisdictional arrangements, the U.S. embarked on an arrangement in which the churches would be formally as free of government support and oversight as possible. The “separation of church and state” is now supposed to have solved the problems of both government corruption of religion and of religious corruption of politics. Religious folks are supposed to take care of religious business and government folks are supposed to mind government business. On this model, the sex abuse scandal was a failure of practice, not a failure of theory.

The as yet incomplete archive we reflected on at the Yale conference is a cache of documents from the ongoing litigation, mostly brought by victims of abuse against their abusers, as well as from grand jury investigations, prosecutions by public authorities, and internal church investigations. Some documents concern abusive encounters that occurred many decades ago; some concern recent abuse.

If our proposed purpose is to focus on the specifically religious, what do we make of the fact that we are reading mostly legal documents in which the words of both victim and abuser are profoundly framed and shaped by legal reasons, at times, actually drafted by lawyers? Even the internal church documents are profoundly shaped by law, both U.S. law and canon law. Why can’t we speak the words of religion? The answer is complicated; partly it is because litigation, especially tort litigation, is the lingua franca of American faultfinding. But, more importantly, it is because there is no purely religious language. The church and the state grew up together, embraced Roman law, and developed bureaucracies and discourses about human motivation and causation that are deeply and mutually implicated.

There are two strong interpretive positions in the contemporary U.S. with respect to the future of the religion clauses. They suggest different responses to the sex abuse scandal, as they do to other current moral and political debates. Neither offers a legal model for taking religion seriously in a diverse society.

One position holds that all privileges and special treatment for religion should end. Religion is not special. Every person should be equal before the law, and the churches should be no different. For proponents of this position, religious freedom is defensible only insomuch as it is about individual religious freedom and is continuous with freedom of expression and association. Religious communities should simply exist in a legal sense as voluntary groups of like-minded individuals who can enter or exit at will. They should be subject to all laws, including the tax laws, as everyone else is. They should not be protected in their perpetuation of patriarchy and secrecy. Separation, on this model, means individualization and neutralization of religious reasons.

The other position holds that protection for religious liberty should focus on the church, not the individual. Churches, it is said, need more, rather than less, institutional integrity. They need autonomy. Religious liberty is, on this reading of the Constitution, about the freedom of religious institutions to define and govern themselves and their members. The newest Supreme Court decision, Hosanna-Tabor v EEOC, gives some support for this position, affirming, as it does, the constitutionality of the ministerial exemption—which exempts churches from laws against discrimination in employment. Adopting the critique of the Enlightenment subject as an affirmation of their authority, church autonomy will enable the churches to take on responsibility for policing their own. Confident that religious business can be separated from law business, as sin from crime, religious liberty can, on this theory, largely be reduced to a question of jurisdiction.

Let us now go back to the archive with these two positions in mind. The first position understands the sex abuse scandal to be a failure of law and of state oversight. The relationship of lay Catholics to the church should be regulated in the same way as in all other private institutions. Children should be taught to be wary of the adults in the church as they should be of all other adults, and there should be transparency and openness about their interactions with them. Priests should not be recognized by the state as sacramentally ordained within an alternative normative order, but as workers subject to law. Sex abuse in the church would be seen to be of a piece with such abuse in other institutions.

The second position understands the sex abuse scandal to have resulted from contamination of the church by secular culture and values, and it should be addressed by a redoubling of church discipline. This regime acknowledges, perhaps under duress, the need for the reporting to the police of any harm to children, but it is the church that should recognize (and it alone decide) when its clerical employees have broken a law and forfeited priestly privileges. At that point, the priest would be turned over to the secular arm. (This legal arrangement has a long tortured history, of course, and is a history strewn with martyrs.)

Surely each of these positions is, in its own way, a profoundly inadequate response to the massive pain evident in these events and, more generally, to the gaps left by the modern church-state settlement. In each position, authority is misrecognized and mislocated. The first, overly confident of the possibilities of progressive law reform simply refuses religious authority of any kind; the second, founded in a narrow Christian sectarianism, abdicates any responsibility for participation in a serious dialogue about the larger common good.

As we heard at the conference, the church that the priests and kids in these cases inhabited was not just a voluntary organization like the Boy Scouts. It claimed to sacralize and ritually encompass everything, including sexuality. Being Catholic was “awesome,” one speaker said, and by that he meant to invoke the power and ambivalence of the sacred. For canon lawyers, this church administered a higher “universal law.” These are strong religious claims indeed, grounded in a complex mythological imagination—claims that are also highly contestable; but analogous claims can, of course, be made in all of the many religious cultural idioms of the world. How can the powerful majesty of the universal church—or of any other mystical reality—fit into the cramped spaces of multi-faith religious freedom as delineated by the international instruments? What kind of church would that be? And what kind of state? What kind of legal personality can the church have under these laws? And what kind of religious personality can individuals have? Must all religions trim their sails and reinvent themselves as subjects in the secular state? Would such religions offer any real models of life to contemporary society?

One of the difficulties with the stale debate about the meaning of the First Amendment religion clauses is that both sides see sovereignty as a zero-sum game. Liberals seek to protect human rights through a strong evocation of state sovereignty on behalf of the individual. Church autonomy advocates want a piece of that sovereignty. They want to carve up the available authority between church and state, preserving their peculiar customs from public scrutiny.

One cannot help but think of Wendy Brown’s recent claim that walls are a feature of the waning, not the waxing, of sovereignty. What we see in these files are the clunky remnant of church sovereignty from a bygone age bumping up against the clunky sovereignty of a state, also from a bygone age. Both are the product of the same modern legal history that began with the re-discovery of Justinian’s Institutes in the twelfth century and ends with the building of walls. The so-called secular law contains embedded and outdated religious anthropologies and cosmologies, while the religious law is strangely similar to the secular law in its reliance on process and indirection and the primacy of the protection of property. Each strives to exclude the other. It is not surprising that they worked so well together to further obscure the abused children.

Legal regulation of religion is a pressing issue today, as new constitutions are being drafted following the Arab spring and other revolutions. They—and we—are being challenged to think differently about religion and law. Tolerance may be in our DNA, as Robert D. Putnam and David E. Campbell argue, but we have not really absorbed the profound losses that this genetic program entails. We need, together, to re-imagine governance in a space that Julian Rivers describes as being “between establishment and secularism.”

Serious crimes have been committed, yet there is more than a whiff of a witch hunt to some of these proceedings. That is a product of a particular American religious history but it is also a product of the American style of tort litigation and its partnership with the media—and of the increasing penetration of law and psychiatric treatment into the intimate relationships of our lives. Calling the police will not compensate for the poverty of our will and imagination when it comes to reforming our capacity for shared governance in a world of highly plural and fragmented religious identities and activities. Bringing the pope before the ICC will not repair our loss of faith or our loss of participation in the sacred mysteries and the tight logic of salvation. All the psychiatrists in the world cannot restore the unity of the universal church or of law. We need to stop thinking in terms of separationist dichotomies. It will not be easy.

Special thanks to Nancy Levene and Barry Sullivan for their comments on earlier drafts of this piece.

—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.

The last sentence of the Court’s opinion in Hosanna-Tabor announces the dogma that binds the majority opinion. Affirming for the first time the constitutional status of the ministerial exception, the Chief Justice declares that “(t)he 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 is “the church?” Christians mean different things at different times when they use the definite article in speaking of church—when they speak of “the church.” Sometimes they are referring to the church on the corner, or a particular church organization, such as the Presbyterian Church USA, one of any number of churches. (That is how the Court uses the phrase at various points, when referring to Hosanna-Tabor in particular, as on page 5, or when it refers specifically to the Church of England, as on page 7, and so on.) In legal and political contexts, “the church” may be opposed to “the state,” vaguely throwing a circle around all religiously motivated activity. The Court in Hosanna-Tabor is not speaking in these ways in its last sentence. The Court is speaking theologically, and dogmatically, as it does several pages earlier in describing the purpose of the ministerial exception: “The exception . . . ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly eccle­siastical’—is the church’s alone.”

Theologically speaking, “the church” refers to what might be termed the mystical church—also known in Christian doctrine as the “body of Christ”—that is, the communion of all Christian believers across space and time, alive and dead, unified through apostolic succession. Christians have differed about how the visible church on earth should be governed and have related in different ways with political authorities. The Roman Catholic Church understands itself to be a universal church—that is, as embodying all Christians, on heaven and on earth. Protestants have had a range of theological readings of the church, derived in part from their new readings of the New Testament beginning in the sixteenth century, a range that is reflected in the range of ecclesiologies among American colonial proponents of religious freedom. But a distinguishing feature of the United States, arguably, is that after 1791, the unity of Christendom expressed as “the church,” whether in Roman Catholic or Protestant guise, no longer has legal personality. It is the people who are in charge.

Take Roger Williams, for example, the seventeenth-century founder of Rhode Island and colonial hero of many a current religious defender of the rights of churches in the United States. For Williams, the church was to be found, if at all, in those local few “gathered in his name,” without any bureaucratic superstructure. At the end of his life, Roger Williams, skeptical of Christian claims of biblical authority to found churches and of the hypocrisies of what he derided as Christendom, belonged to no church. One could even argue that it was Williams’ skepticism about organized religion rather than any desire to protect religious institutions that most presages constitutional religious disestablishment. Williams, pious Christian though he was, thought political life in a diverse community could be organized without reference to religion.

The majority opinion in the unanimous decision from the Court in the Hosanna-Tabor case affirming the constitutional status of the ministerial exception as a right of the church 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 Magna Carta. The church was free 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 during the time between King John and King Henry, 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 then 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, and immigration profoundly changed American religion. After 1791, official Americans, when speaking of American religion, arguably can no longer descriptively—or constitutionally—speak, as the Court does, of “the church” and its rights. The church had been disestablished.

Precedent for the majority’s reading of the rights of the church is also found in what are known as the church property cases, a set of US cases that address disputes over future ownership and use of churches when their congregations have a split in doctrine. This is a complex line of cases but one difficulty with using the church property cases as establishing the right of “the church” to choose its ministers is that, by definition in such cases, there are at least two groups of people who lay claim to a right to define who is a minister and to choose their own minister. In each case, after the courts decided the issue, one group did not get to select its own minister or it had to abandon the church in question and found its own new congregation in order to do so. In each case, the Court sided with what it took to be the hierarchy.

The Court concludes this section of its decision with an announcement of the rule that “‘the First Amendment commits [resolution of the property cases] exclusive­ly to the highest ecclesiastical tribunals’ of the Church.” Citing its decision in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, the Court explains that the First Amendment “permit[s] hierarchical religious organi­zations to establish their own rules and regulations for internal discipline and government, and to create tribu­nals for adjudicating disputes over these matters.”

Evidence for the Court’s transcendent ecclesiology, that is, its theory of the church and of church governance, can also be found in the way it distinguishes Smith—the peyote case. Smith held that the free exercise clause of the First Amendment does not provide a constitutional 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 (see my previous post), 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 US 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 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.

Most significantly, though, in the current moment, is that there is arguably no analogy to “the church” in its mystical sense outside Christianity. While other religious communities speak of the body of the faithful in various ways, the Court’s opinion would seem to suggest that its doctrine is tightly and very specifically bound to a history of the Christian church and its assertions of its rights in the context of a particular reading of English history.

Founded in its reading of English church history, the constitutional right articulated by a unanimous court in this decision is “the freedom of a religious organization to select its ministers.” While the Court acknowledges that it might occasionally prove difficult to decide who qualifies as a minister for these purposes, it nowhere mentions the difficulties of determining what a religious organization is. Justice Alito’s concurring opinion, evincing a careful 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 United States 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.”

The schoolteacher, Cheryl Perich, taught fourth grade in the Missouri Synod Lutheran Hosanna-Tabor School in Redford, Michigan. In the summer of 2004, after several years of teaching, she developed a serious illness that prevented her from working. Although she tried to return to work in January 2005, the school asked her to resign. She threatened to report the school’s treatment of her to the EEOC and was subsequently terminated. Perich claims that she was fired for exercising her ADA rights. The school says she was fired because she refused to conform to church discipline. Going to civil law is considered a serious breach of Missouri Synod doctrine.

When the EEOC did file suit in federal court, the Church successfully argued to the U.S. district court that the “ministerial exception,” a legal doctrine said to be based both in statutory exemptions for religious employers in Title VII and other civil rights legislation as well as to flow from the combined action of the free exercise, no establishment, and freedom of association provisions of the First Amendment to the U.S. Constitution, deprived the federal court from assuming jurisdiction over the case. In other words, as the lawyer for the Church asserted to the Justices in the high court, under U.S. law, even though most of her day was spent teaching secular subjects, because Ms. Perich was formally commissioned as a “called teacher,” or minister, under Missouri Synod Lutheran doctrine (the only way she could attain tenure), her only forum in which to make a claim for unjust treatment was the internal church dispute resolution process. By deciding to accept a position as a teacher in a church-related school that defined her job in ministerial terms she had given up her rights as an employee under federal and state employment discrimination laws. She had effectively left the jurisdiction, legally speaking, at least for some purposes. She had put herself beyond the reach of secular law. As Church’s lawyer argued to the Court last week, “she couldn’t go to civil court if she’s a minister. She could have gone to the synod.” Her remedy was in the church courts.

The ministerial exception is a doctrine developed in the lower federal courts—one that goes beyond the statutory exemption within the ADA itself that allows religious organizations to preferentially hire their own co-religionists to disable the courts from considering employment issues related to ministers at all. The Supreme Court has never before decided a case under, or even affirmed the existence of, the ministerial exception, so this will be a much watched-for decision.

The transcript of the argument in this case provides an opportunity to reflect on the terms in which religious accommodation is being argued today in the U.S. and the extent to which the religion clauses demand formal judicial deference to an alternative normative order; that is, how and whether, in the peculiar alchemy of their jurisprudential history, an eighteenth century religious politics can be asked to serve a twenty-first century one.

The religion clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These words are understood today to guarantee the rights of individuals to freely choose their religious opinions and to prohibit government from funding or mandating core religious activities such as worship and proselytizing. In recent decades, the Court has seemed to favor a hands-off model of religion clause jurisprudence, finding, on the one hand, that religiously motivated folks are usually subject to the same laws as everyone else (absent a showing of intentional discrimination, viz. Employment Division v Smith); and, on the other, that they may bid for government funds on the same ground as everyone else (as long as they abstain from coercive proselytizing, viz. Agostini v. Felton). Further, in Hein, the Court has recently implied that church-state separation no longer demands an establishment clause exception to the standing rules in taxpayer cases. One effect of this jurisprudence has been to shift religious lobbying and law-making to the legislatures and lower courts.

Hosanna-Tabor is interesting in part because it brings to the fore a troublesome left-over issue for Americans. To what extent does religious freedom imply a need for formal legal recognition of churches at all? Can American churches manage on their own as private voluntary associations of like-minded individuals worshipping together under the laws that govern other private associations; or, do they need, or does the Constitution demand, more robust government support, even a ceding of sovereignty within certain areas, allowing them to act as small state-like institutions, enforcing their own laws?

A radical version of U.S. disestablishment would suggest that churches in the U.S. are, and have from the beginning been, understood 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 public institutions legally defined and supported by the state. State-supported churches with their own jurisdictional domains were the common model in Europe. Arguably it is that model that Americans have been trying to get away from for several hundred years. The ministerial exceptions, and other lingering legal privileges for American churches, particularly the most legal-minded of them, seem, at times, to be vestiges of that older European model.

These are complex issues, particularly given the religious diversity of the U.S. Let us listen in on last week’s argument in the Supreme Court. It was a remarkably confusing conversation. What exactly is the ministerial exception understood to accomplish? Is that something most Americans want to accomplish?

One of the striking aspects of the argument last week was the extent to which, although there was much discussion of the difficulty and unavoidability for the courts of defining who is a minister, both the lawyers and the justices accepted as the limiting case the Catholic Church and its restriction of priestly ordination to men. It seemed for many present that whatever rule was arrived at had at the very least to preserve the Catholic Church from being forced to accept women into the priesthood. Even the lawyer for the government, the deputy solicitor general, kept backing off from a strong assertion that churches must be subject to law respecting retaliation to the same extent as other private associations as soon as she was pressed to consider the Catholic case. For example, see the following interventions, made by various justices and lawyers:

JUSTICE BREYER: So the fact if they want to choose to the priest, you could go to the Catholic Church and say they have to be women. I mean, you couldn’t say that. That’s obvious. So how are you distinguishing this?

MS. KRUGER: Right. We think that both the private and public interests are very different in the two scenarios. The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.

****

CHIEF JUSTICE ROBERTS: On the other hand, the — the belief of the Catholic Church that priests should be male only, you do defer to that, even if the Lutherans say, look, our dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic.

MS. KRUGER [Acting Deputy Solicitor General]: Yes.

***

JUSTICE SCALIA: Would you — would you allow the government to go — go into the — into the dismissal of the Catholic priest to see whether indeed it — it was pretextual?

MS. KRUGER: I think the answer is no, Justice Scalia –

***

JUSTICE SCALIA: Would you—would you—take the firing of a Catholic priest example. Does that get into the courts?

MR. DELLINGER: No, it doesn’t.

***

MR. DELLINGER [representing Ms Perich]: Well, in our view, if that was the test, then we would say that the court of appeals was correct in holding that she was not a minister, and the reason — the principal reason is she carries out such important secular functions in addition to her religious duties -

CHIEF JUSTICE ROBERTS: I’m sorry to interrupt you, but that can’t be the test. The Pope is a head of state carrying out secular functions; right. Those are important. So he is not a minister?

Repeatedly the Catholic example was reached to as the test case. Undoubtedly that is the case that most of the justices know best, but there was also a certain privileging of the Catholic Church as exemplary.

Lawyers for the Church argued that the ministerial exception is necessary because, if the employment relationship between a religious organization and its employees were subject to civil rights law, there would be a fundamental threat to religious institutions and their constitutional independence from state regulation. There are stronger and weaker versions of this need for what is sometimes termed “church autonomy.” Some in the courtroom seemed to think the ministerial exception could be limited to what they thought were obvious cases—what they called the hiring and firing of priests, pastors and rabbis. Others, inside the court, and out, would claim a larger sphere of sovereignty for church jurisdiction.

Are the U.S. civil rights laws really a threat to the continued male clericalism of the Catholic Church? That concern seems misplaced. The relationship of the Catholic priest to the Church is, at heart, not an employment relationship. A man becomes a priest through the sacrament of ordination, a religious ritual which confers an “indelible” mark, under canon law:

Canon 1008. By divine institution, the sacrament of orders establishes some among the Christian faithful as sacred ministers through an indelible character which marks them. They are consecrated and designated, each according to his grade, to nourish the people of God, fulfilling in the person of Christ the Head the functions of teaching, sanctifying, and governing.

Canon 1024. A baptized male alone receives sacred ordination validly.

He is subject to the supervision of his Bishop in his exercise of his office. No one argues that it would be constitutional for Congress or for a court to force the Catholic Church to ordain women. (And the EEOC was not seeking reinstatement of Ms. Perich to her ministry in this case.) The conferring of sacerdotal authority is a private act in the U.S. Churches do not need special exceptions to protect that. The difficulty comes when churches act as public institutions, such as when they hire people to discharge public, secular, duties such as school teaching. Then the public interest in protecting employees from discrimination and retaliation comes into play. Then the churches’ larger claims to special institutional autonomy become evident.

If the court is to exempt churches, as employers, from secular law, it is inevitable that they will be required to decide who is a minister and who is not, as was acknowledged repeatedly in court. Courts have often said that they don’t want to do that and yet they don’t seem to quite have the courage to walk away from the special protection and corresponding public role that churches and ministers enjoy—and the inevitable line-drawing that must be done. The Church’s lawyer was ready with a definition of a minister that he thought would be easy for the courts to administer:

MR. LAYCOCK: A minister is a person who holds ecclesiastical office in the church or who exercises important religious functions, most obviously, including teaching of the faith.

What are important religious functions? Among other things, it is quite striking that in 2011 an argument about giving special privileges to religion could proceed using only Christian language—as if churches and ministers exhausted the possibilities of religious leadership in the U.S. today. Everyone in the Court spoke of Christians and Christian churches and Christian ministers. Indeed they seemed to veer toward the higher liturgical end of the spectrum even among Christians. It does seem ironic, at the least, that among the thousands of religious groups in the U.S., the hierarchical churches might be given the strongest legal protection under these laws.

There are thousands of American laws giving special legal privileges to churches and to ministers. Many of these are extended well beyond the historically established churches to persons and institutions of a variety of religious commitments. When they support the autonomy of religious institutions in the disciplining of their members they tend toward the support of alternative normative orders. While individual conscience under Smith must bow to secular neutral laws of general application, church autonomy laws would require individuals also to bow to ecclesiastical law in a variety of contexts. Professor Laycock explains why this is necessary, as a political theological matter:

MR. LAYCOCK [for Hosanna-Tabor]: It’s not that institutions are different from individuals. It is that the institutional governance of the church is at a prior step. Smith is about whether people can act on their religious teachings after they are formulated. The selection of ministers is about the process by which those religious teachings will be formulated.

The presumption under this exception seems to be that churches must be protected by the state because it is in churches that individual consciences are formed. Most cases under this exception involve schoolteachers. The ministerial exception assures that children will be taught by schoolteachers who are under church discipline and that the church will exercise a public ministry with respect to those children. This is a robust claim for legal pluralism.

While most Americans undoubtedly believe that the government should not tell churches who should exercise religious leadership, arguably it is also the case that most Americans think that ministers are not the last word on what religion and moral formation is about—that the life of religion is not in the rules of established churches but in the faith-filled spiritual life of the people who only occasionally listen to their pastors, rabbis, priests, monks, gurus, or other would-be spiritual leaders—anyway.

The object of its concern on this occasion is an eight foot white cross standing on a rock outcropping on a federal preserve in the Mojave Desert, first placed there in 1934 by the Death Valley post of the VFW, and denominated a national WWI memorial by Congress in 2002. The legal issue before the Court was whether the Ninth Circuit Court of Appeals had properly affirmed a District Court ruling that the 2004 congressional act transferring the acre of land containing the cross to the VFW was illegal. The District Court had determined that the act was an effort to circumvent its original injunction forbidding display of the cross at that place on the grounds that it would be viewed by a reasonable observer as an unconstitutional government endorsement of religion.

The six opinions presented in Salazar v. Buono display various views on how the law of injunctions should be applied to the facts. All agree, however, that the District Court’s original decision—finding display of the cross on federal land to be an unconstitutional establishment of religion—is res judicata (that is, “the thing is decided,” and is no longer reviewable). Along the way, however—partly perhaps because, as some of them said, the law of injunctions is not very interesting to them—many of the justices, both at oral argument and in their written opinions, couldn’t resist offering opinions on the public meaning of the cross.

As in most establishment clause cases, the Court was very divided. There is no majority opinion, and a plurality agrees only on the judgment—that is, that the District Court failed to apply the proper standard in considering the legality of the Congressional act under the injunction, and that therefore the case should be sent back to the District Court for re-consideration in light of its opinions. Opinions by the justices concurring in the judgment were filed by Chief Justice Roberts and by Justices Kennedy, Alito, and Scalia. Dissenting opinions were filed by Justices Stevens and Breyer.

Reading the significance of this decision as a predictor of the Court’s future first amendment jurisprudence is probably a waste of time. But these opinions are nonetheless valuable as a display of the varieties of early twenty-first century anxiety over the representation of collective identities.

JUSTICES SPEAK

All of the judges and justices that have heard the case assert that symbols can be understood only in context. In other words, symbols don’t “mean” without context. It is a bit unclear from prior cases how a court is to locate the appropriate context in space and time, but the rule suggests a presumptive indeterminacy. Yet, once they got to talking about it, the cross was not really ambiguous for them. The cross could be read without any specification of context. Indeed, the opinions speak of “the cross” as if it has a power and agency that is obvious. The cross, they all said, is the symbol of Christianity. One doesn’t really need context for that. The issue is whether it is constitutional for the cross to stand on public land as a collective memorial.

At oral argument, in discussion with Peter Eliasberg (representing Mr. Buono, the plaintiff complaining of the display), Justice Scalia responded to Eliasberg’s suggestion that the cross only honors Christians:

JUSTICE SCALIA: The cross doesn’t honor non-Christians who fought in the war? Is that—is that—

MR. ELIASBERG: I believe that’s actually correct.

JUSTICE SCALIA: Where does it say that?

MR. ELIASBERG: It doesn’t say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that’s why the Jewish war veterans -

JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of—of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.

(Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE SCALIA: I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.

In the chilly courtroom laughter and Scalia’s angry response can be heard the difficulty—one that echoes across centuries. Because crosses are not used in Jewish cemeteries, they cannot honor non-Christians, whatever the intention of those who erected the cross—or of those who see it. That is understood to be self-evident. To honor all American war dead, it is implied, other symbols must be used.

And yet, many Americans would agree with Justice Scalia. Justices Kennedy and Alito spoke of the cross as a symbol of national sacrifice; the American soldier amalgamated to the man who died on the cross—a worrying expression of religious nationalism that is common, complex, and difficult to speak of.

About the cross, Justice Kennedy said:

Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message . . . Time also has played its role. The cross had stood on Sunrise rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness . . . Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage . . . a symbol that . . . has complex meaning beyond the expression of religious views . . . one Latin cross in the desert evokes far more than religion.

Justice Alito:

. . . the United States [is] a Nation of unparalleled pluralism and religious tolerance . . . The cross is of course the preeminent symbol of Christianity, and Easter services have long been held on Sunrise Rock . . . the original reason for the placement of the cross was to commemorate American war dead and, particularly for those with searing memories of The Great War, the symbol that was selected, a plain unadorned white cross, no doubt evoked the unforgettable image of the white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict . . . the demolition of this venerable if unsophisticated monument would also have been interpreted by some as an arresting symbol of a Government that is not neutral but hostile on matters of religion.

Are they simply blind? Or worse?

For Justice Stevens, in dissent, the cross was singular and sectarian in its voice, speaking only of something smaller than the nation, something that represents difference, not unity:

A Latin cross necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ . . . Even though Congress recognized this cross for its military associations, the solitary cross conveys an inescapably sectarian message . . . Making a plain, unadorned Latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian . . . The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith. The cross has sometimes been used, it is true, to represent the sacrifice of an individual, as when it marks the grave of a fallen soldier or recognizes a state trooper who perished in the line of duty. Even then, the cross carries a religious meaning. But the use of the cross in such circumstances is linked to, and shows respect for, the individual honoree’s faith and beliefs.

The cross, according to Stevens, is singular and sectarian. It cannot be secular or universal.

Justices Kennedy, Alito, and Scalia argued that the cross, in the context of a war memorial, was not best described as sectarian. In the words of Justice Kennedy, “one Latin cross in the desert evokes far more than religion.” What does he mean? What is “more than religion”? Is the “more” America? Or is the “more” humanity? Is the “more” necessarily secular? Is it indeed more, or is it less?

Much commentary on cases like this suggests that we can and should tidy up the landscape of our symbolic universe. But with what symbols will we be left? And will they suffice to memorialize our loss?

CROSSES

Crosses of various kinds have served to symbolize aspects of human culture and society over a time and space that both precedes and exceeds Christianity. The simplicity and evocative power of the meeting of two lines and its capacity to structure our imagination in various ways find examples from all over the world and throughout human history. Crosses, like other simple shapes—circles, helixes, crescents, stars, spirals—derive their power, in part, from their capacity both to signify universal experiences and, at the same time, to carry highly specific references that root them in very particular religious and political histories. A cross can be at once a symbol of all meeting places, of the axis mundi, and also of highly particular religious meanings such as those attributed to the execution of one man in Roman Palestine in the first century of the common era. On the other hand, the deliberate erasure of the cross has been a potent symbol of secularism and of the rejection of Christianity.

Why do crosses continue to present themselves publicly and to present such a difficulty for the modern, secular nation-state? Cross cases exist across the world. Haven’t the myths and symbols of religions been supplanted by the myths and symbols of nationalism? Has secularization failed? Or, has the cross been secularized? One could argue, I think, that the crosses and other religious symbols that continue to populate our imagination and our environment connect the universal and the particular in ways that the nation fails to do—revealing, among other things, the limits of civil religion, as well as the limits of secularism. And yet it is far from clear whether any universal meaning remains available today in the U.S.—or elsewhere—for any symbol.

Another decision, from the Southern District of California, Trunk v. City of San Diego, concerns the twenty-nine foot Mt. Soledad cross in San Diego. The first cross was erected on Mt. Soledad, then city-owned land, in 1919, also as a war memorial. That cross has been replaced several times and the area around the cross further developed as a memorial since then. In 2004, after litigation seeking removal of the cross was brought against the city, the federal government acquired the property on which the cross stands by eminent domain in order to establish it as a national veterans’ memorial. Again, legal action was instituted—this time, challenging Congress’s acquisition of the memorial. In 2008, Judge Larry Burns, after lengthy consideration of the possible meanings and contexts of the cross, held that its display on Mt. Soledad did not communicate an unconstitutional message and granted summary judgment for the defendants. Burns wrote:

The court finds the memorial at Mt. Soledad, including its Latin cross, communicates the primarily non-religious messages of military service, death, and sacrifice . . . As such, despite its location on public land, the memorial is constitutional.

“The primary effect of the Mt. Soledad memorial is patriotic and nationalistic,” Judge Burns concluded, adding, “[t]his is but another way of saying the message the objective observer takes away from the memorial is a secular one.” So . . . the Mt. Soledad cross is apparently secular not religious, and therefore permissible.

Judge Burns also compared the Mt. Soledad cross and the Mojave cross:

Plaintiffs rely on Buono to support their initial argument that displays with crosses ought to be analyzed differently from displays with other religious symbols or texts. They suggest the Court need not engage in a detailed analysis of the evidence, but should simply conclude the Latin cross necessarily conveys an exclusively religious message . . . But unlike Buono, where no one apparently disputed that the cross is exclusively a Christian symbol, here it is disputed . . . precedents dealing with public displays of crosses in the Establishment Clause context suggest Latin crosses should not be assumed to be primarily or exclusively religious symbols . . . The Latin cross is, to be sure, the preeminent symbol of Christianity, but it does not follow [that] the cross has no other meaning or significance. Depending on the context in which it is displayed, the cross may evoke no particular religious impression at all.

Symbols are to be evaluated in context, and key in the Mt. Soledad case was the presence of other objects in addition to the cross. Burns described its appearance and surroundings:

The cross was conspicuously marked with a bronze plaque noting its status as a veterans’ memorial, and other features were added to the site. These include six large concentric walls displaying over two thousand engraved, formal black granite memorial plaques recognizing individual veterans, with room for over a thousand more. The plaques contain personal information, pictures, and symbolic elements (both religious and secular) and are installed at a substantial cost to the purchasers. The religious imagery on the plaques includes crosses, the Star of David, and emblems of other religions. Adjacent sidewalks invite visitors to view the plaques up close. Other additions to the memorial include brick paving stones commemorating veterans and supporters, and twenty-three bollards honoring community and veterans’ organizations, encircling the walls. Finally, an American flag now flies from a large flagpole at the memorial.

One might say that the Mt. Soledad cross had been converted from a religious symbol to a symbol of civil religion by being mixed with other objects, including the flag, just as the nativity scene and the Christmas tree have been understood in earlier establishment clause cases to be converted into secular/civil ones by being placed in the presence of other symbols.

The actual crosses themselves are virtually indistinguishable. Tall and white and prominently displayed on high natural places, both of these crosses are also pedantically referred to by the parties and by the courts as “Latin” crosses. Dictionaries will tell you that a “Latin” cross is distinguished from a “Greek” cross by its longer vertical arm. The difference means little in the U.S. context. Indeed, the distinction is truly a matter of ancient history. What is more noticeable when American crosses are contrasted to crosses displayed in Catholic Europe, though, is that American crosses, at least public ones, have no bodies. They are Protestant crosses. Does that make them more capable of universal meaning? Judge Burns thought so: “While a crucifix is an unmistakable symbol of Christianity, an unadorned Latin cross need not be.” One hears whiffs of an earlier U.S. anti-Catholicism—but also one hears an expression of the nondenominational Protestant Christianity that was understood to serve a universal purpose in nineteenth- and early twentieth-century public contexts in the U.S., including in public schools.

CONCLUSION

U.S. courts are divided about the presence of crosses on public lands. For some, the cross is a universal—and therefore secular—symbol, one that stands in for all religions, for a sacrifice that is inclusive rather than exclusive. This universality derives both from age-old theological claims made by Christian speakers and from the apparently enabling function of the presence of even one religious symbol, an enabling function that gestures beyond nationalism. For some Americans, the accommodation of Christianity arguably makes a place for religion that can then be extended to other religions. This place is culturally structured by Christian assumptions and regulated by secular law, but one can make the argument that it is a kind of religious freedom.

Do soldiers fight and die for their country out of civic piety, as the ACLU suggests in its various amicus briefs in the cross cases? Should war memorials have only flags on them? In his article about the ambiguities of the role of military contractors in the Iraq War, Professor Mateo Taussig-Rubbo notes the expressed motives of the men who fight and die as employees of Blackwater, Inc. (now known as Xe Services LLC). While they are private citizens—mercenaries, in effect—formally denied the status of U.S. soldiers within the national economy of sacrifice, who do not receive medals or military burials, their own motives are less tidy. Like those who died in what is known as the Great War, they understand themselves as fighting for both the United States and for universal values—for freedom and the rights of all men. At their headquarters in North Carolina, Blackwater has created its own civil religion, which celebrates the sacrifice of its men with medals and a memorial “dedicated to the courage and honor of our fallen teammates. Their dedication and sacrifice will never be forgotten.” Faisal Devji, writing of the motives of Al Qaeda fighters, argues that they too see themselves as, in some sense, fighting for all of humanity. What these examples suggest is that the modern nation-state has limited control over its own symbolization and sovereignty, particularly when it comes to the human sacrifice it attempts to legitimate and the deep ethical ambiguities inherent in any symbolization of those deaths, through the use of either religious or secular symbols.

Over the last thirty years or so, for a complex set of reasons—including, I think, fear of scientific naturalism, the hardening of political divisions, and the stakes involved in owning pieces of the cultural landscape—universalism has fallen on hard times. Judges cannot cope any better with this than the rest of us.

[Parts of this post are derived from the author's essay, "Why Are We Talking About Civil Religion Now?: Comments on 'Civil Religion in Italy: a 'Mission Impossible'' by Alessandro Ferrari," forthcoming in The George Washington International Law Review.---ed.]

There is an embarrassing giddiness in the religious studies world today. With our new mantra in hand—the new “salience” of religion—we, both scholars of religion and other self-appointed spokespersons for religion, feel licensed to instruct the world on the importance of religion. We are suddenly relevant again. Or so we think.

If there is an opportunity for religious studies today, and my own view is increasingly that this is an opportunity more for listening than for speaking, the Chicago Report suggests the likelihood that this opportunity will be misunderstood and misused. Religion today is an immensely complex phenomenon. And there are many who speak in its name. It is far from clear that there is any sense in which generalizing about religion is useful as a political matter—or, for that matter, that the United States government should be spearheading a new reformation.

The Chicago Report reflects both a particularly American take on religion, descriptively and normatively, and a particularly American style of imperialism. In service of the new “imperative”—the new “salience” of religion—the Task Force proclaims a usable history and account of religion that is often just plainly wrong, and sometimes grotesquely so.

The Report announces that: “Religion is now playing an increasingly influential role—both positive and negative—in the public sphere”; that “Extremist groups also use religion”; and that we should support “those doing good, while isolating those that invoke the sacred to sow violence and confusion.”  It recommends that the National Security Council initiate a new strategy in American foreign policy. The goal of this new strategy would be to promote American interests through engagement with constructive religious actors, engagement that would distinguish good people of faith from bad ones and deliberately marginalize religious extremists, all in the name of American security. The Report knows what is constructive and it knows how to divide the good guys from the bad guys—that is, vital, autonomous, authentic, credible, and legitimate religion, and genuine religious freedom, from that which is extreme, destructive, and not accepting of “pluralism, freedom, and democracy.”

The record is not very good in this respect. Religion is powerful, when it is, because it embraces the full spectrum of human activity. Distinguishing the good from the bad has often divided religious insiders, as well as outsiders. Furthermore, the United States government has long dealt with “religious actors” at home and abroad who do not embrace “pluralism, freedom, and democracy.” American governments have been active sponsors of proselytization in the name of civilization in the case, for example, of Native Americans and Mormons, as well as supporters of both regimes and rebels who are motivated by religious ideologies that do not support “pluralism, freedom, and democracy,” as, for example, Israel, or the mujahideen who resisted Soviet rule in Afghanistan. There is no reason to think that it will get better. Nor do we have any reason to believe that the ambitious and utopian program for the reform of religion proposed by the Chicago Report, and expressed in this astonishing prediction—“Over time, as religious communities play even greater roles in the positive transformation of their societies, the importance of vital and autonomous religious agency will become more visible, pronounced, and politically consequential”—can, or even should, be accomplished, or that the National Security Council is the man for the job.

Most importantly, perhaps, for a report about religion, there is not much religion in this report. One searches in vain for anything new about religion, beyond a now familiar post-9/11 account of religion being a force for good and ill, an account that is supported by examples that are so hackneyed as to be not much more than scapegoating. For example, in discussing the best and worst of religion—obviously seeking a non-Islamic example—the Report uses Haiti as an instance of  the “best and worst of faith-based efforts”:

A classic example of the wonders and ills was the catastrophic earthquake in Haiti in January 2010. Eighty-one U.S. charities, including faith-based organizations, raised or pledged $611 million for relief efforts within three weeks of the devastating quake, while legions of development personnel worked in the midst of great suffering to provide food, medicine, and shelter. Meanwhile, a Baptist group was implicated in the kidnapping of children, which raised local suspicions and tainted the immense, positive contribution of the faith-based development effort.

This is the best and worst of faith-based efforts in the world? Nowhere in the report is the massive sex abuse scandal in the Catholic Church mentioned. Surely, that scandal reflects the worst far more than the misguided but well-intentioned efforts of a few would-be rescuers of children. But in this report, the Catholic Church is one of the good guys. As for women’s rights, they are deliberately relegated to second place.

This report is also oddly inconsistent about whether religion is an individual matter or a collective matter. At times, the word religion seems to refer to the familiar, modernist, progressive, American, protestant form that is now widely documented and described as the religion of the first amendment. But, curiously, a footnote defines religion for the purposes of the report in a quite un-American way:

We define religion as an established system of belief, practice, and ritual based in a collective affirmation of a transcendent or otherworldly reality that encompasses and gives ultimate meaning to earthly existence . . . we are particularly focused on multigenerational, transnational religions organized around institutions, leaders, and disciples or followers—adherents who normally number in the millions worldwide, but who are supremely local in their influence and impact.

It seems that disestablishment is good policy at home, but that establishment will be the policy abroad, because “an established system” of “multigenerational” institutions with “leaders” and “followers” is the way to control people and the NSC needs formal actors to engage with.

Interestingly, the question of established religion reveals a division among the Report’s authors. One of the major recommendations in the Report is the following:

Clarify the Applicability of the Establishment Clause. The Task Force calls upon the president of the United States, advised by executive offices and agencies who have studied the problem, to clarify that the Establishment Clause of the First Amendment does not bar the United States from engaging religious communities abroad in the conduct of foreign policy, though it does impose constraints on the means that the United States may choose to pursue this engagement. Such clarification would serve as a major “next step” in the president’s post-Cairo follow-up.

A footnote to this recommendation refers the reader to a dissent and a response to the dissent appended to the report. The dissenters, Jean Bethke Elshtain, Thomas Farr, William Inboden, David Neff, and Timothy Samuel Shah, announce that they “believe that in the absence of compelling evidence to the contrary (evidence which, as the report demonstrates, does not now exist), no administration should impose constraints on American foreign policy that are imagined to derive from the Establishment Clause.”

The responders, Frederick Mark Gedicks, Kent Greenawalt, Abner Mikva, George Rupp, and David Saperstein, while embracing the definition of religion in footnote 7, but perhaps concerned about the broader implications of any suggestion that the Constitution has no authority beyond the territorial borders of the U.S., apparently also felt constrained to announce categorically that “It is beyond question that all branches of the U.S. government must act in accordance with the Constitution when conducting American foreign policy,” and, further, that “There is no reason to believe that the Establishment Clause is an exception to this requirement.”

The First Amendment to the U.S. Constitution begins, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” Since 1947, the Supreme Court has understood the Amendment to have been incorporated through the Fourteenth Amendment due process clause, so that it is now applicable to state governments as well as to the federal government. It is broadly understood today to prohibit the privileging by the governments of the U.S. of one religion over another, and to prohibit government funding of religious worship and proselytization. As the report mentions, the U.S. Supreme Court has not expressly ruled on the applicability of the establishment clause to foreign policy. One could speculate on what this Court might do if asked, particularly after its decision in Hein v. FFRF; but when combined with the definition of religion announced in footnote 7, the view of the dissenters seems to be that those prohibitions should not guide American policy abroad. American policy abroad should discriminate among religions, and should fund and promote the religious activity that it finds good and in the best interests of the U.S.

While periodic, and not altogether successful, efforts at disestablishment have produced a distinctively American style of religious governance—one that is not widely shared throughout the world—it is difficult not to see the adoption of an explicitly establishmentarian position by American foreign policy makers as opportunistic and naïve. Established religion is, by definition, not accepting of “pluralism, freedom, and democracy.” The sacred and the secular are deployed in the report with a startling slipperiness. As Beth Hurd says in her companion piece [forthcoming at The Immanent Frame], a peculiarly toxic form of “American exceptionalism, and a particular notion of American religious freedom and American power, are sacralized in this report, such that they are, in the words of the report, lending ‘a sacred aura and intensity to disputes and campaigns that also have significant secular dimensions.’”

At the same time, “secular’ policies of the U.S. are exempt from responsibility for the creation of violence. With Beth Hurd, and with Rami Khouri, at The Daily Star, I believe this Report says more about “us” than it does about “them.” Khouri writes:

The Chicago report is an important sign of how sensible Americans continue to seek a more complete understanding of the world they live in, and try to forge better policies to navigate that world. But the process reflects the weaknesses in American government policies as a whole in that it exaggerates the role of religion as a distinct independent actor or force, and does not factor into the resurgence of religiosity the stimulus provided by American policies in the Arab-Asian region (and Israeli policies in the Middle East).

This report simply dresses up American political realism in a religious garb. It both misses the real story and shamelessly exploits the politics of fear to support American interests.

It is unquestionably the case that religion seems suddenly to be in everyone’s mouths. There are a number of causes for this, in my view, both historical and epistemological. In part, religion as the other of the enlightenment returns in philosophical circles as good to think. Religion returns as a useful label for a range of practices that exceed the individual—to describe communal and cultural ways of being in the world, as well as material and incarnational accounts of human life. Politically, too, religion is a useful catchall for resistance to various oppressive regimes, the state, the west, the market, science, globalization…. But these issues are beyond the scope of this piece—and beyond the imagination of the report.

It is common in the academic study of religion to speak of groups of people–Muslims, Christians, atheists—as enjoying certain common characteristics over time and space, even while we give attention to the limitations of these denominations. In these conversations we work on further specifying characteristics—evangelical Christians—catholic Christians—orthodox Christians. Or further still—liberal Catholics—conservative Catholics—Irish Catholics—Hispanic Catholics. Or cradle Catholics, Catholic converts. In all these efforts we are speaking of collectivities, of the characteristics of collectivities, generalized across these populations. We know about these characteristics from our study of historical evidence and from sociological research.

We also write about individuals—usually virtuoso individuals. Ibn Arabi, Asoka, Thomas Aquinas, Martin Luther, Anne Hutchinson, Martin Luther King, Gandhi. Prophets, saints, seers, shamans, visionaries . . . innovators and conservators of traditions.

Linking these two ways of speaking is almost always awkward. Are we fascinated by these individuals because they are exemplary or because they break the mold? Is Luther properly regarded as Catholic or Protestant? Is he better understood using psychology or theology? Was Anne Hutchinson more or less true to the church than those who condemned her? Was her fate sealed by her gender or by her religious ideas and practices? Was the Buddha a Buddhist? If these famous exemplars do not fit the crude forms we make, what about ordinary people?

I recently re-read a classic text that attempts to specify the life of a single historical individual who was not a world historical figure. Carlo Ginzburg’s The Cheese and the Worms. I did so during the week of the shooting at Ft Hood. I found the parallels between Major Hasan and Mennochio striking. Or perhaps, more carefully, the cautionary lesson we might take from Ginzburg’s masterpiece in trying to understand Major Hasan.

Immediately after the news broke, major news sources produced theories of who Major Hasan is/was and what/who might have motivated him to violence: his religious commitments, his lack of a wife, his dead-end career, his treatment by fellow soldiers, his suffering from vicarious PTSD. Everyone had a theory.

I will leave the psychological theories to those who understand them better than I. From the perspective of religious studies, however, I think it is interesting to consider in this context exactly what we mean when we assign a religious identity to a particular individual, or when we assent to such assignments.

What do we mean precisely when we ourselves assign or assent to the identification of Major Hasan as a Muslim? Or to the religious identity of any particular individual? Does this mean simply, as liberal theory would have it, that he has chosen certain religious beliefs, as is his right? How do we, as scholars, know that he is a Muslim? Because he associates himself with other Muslims? Because his parents were Muslim? Because he follows the precepts of a collectivity within the world-wide collectivity of those identifying themselves with Islam? Or because he says so? And what do we know when we have made such an assignment? What does saying that someone is a Jew or a Christian tell us or allow us to say further about a particular individual?

Menocchio’s judges seem to have struggled with these very questions. They were the religious experts of their day, members of the Inquisition, and yet they seem to have been uncertain of how to assess Menocchio’s religious identity. What exactly was Menocchio up to when he speculated in un-orthodox ways about the origins of the earth or the virginity of Mary? We can see the same struggle among the forty-five judges at the trial of  Joan of Arc, judges who were mostly faculty at the University of Paris, the religious experts of their day. What claim was Joan of Arc making when she asserted that God spoke to her through the voices of Sts. Catherine, Margaret, and Michael? Both Menocchio and Joan also made highly pious statements of association with the Church and its teaching. Were they heretics or Christians? Or both?

One of the features of the time in which we are living—a time in which it seems newly salient to speak of religion—is a certain lack of care about the assignment of religious identity. It is as if we had not learned the dangers of such assignments in the last century.

Today we lack institutionalized and legally-established religious authorities whose work it is to define the parameters of religious collectivities, and we profess to be committed to a completely unfettered individual right to define such identities on an individual basis. And yet we continue to speak as if such assignments carried with them certain non-negotiable habits of mind and practice. Catholics must be obedient to the Pope. Evangelical Protestants must read the Bible in a literal way and be intolerant of persons of other religious commitments. Jews must reject inter-marriage. Muslims must favor jihad.

How do we mean these attributions? Is it that by individually choosing to associate ourselves with a religious community, we sign on to a set of precepts and practices that are required for membership? Or do we mean something more involuntary? Either in a biological or social scientific way? That we act this way because we are either genetically or psychologically predisposed—even hard-wired—to such actions because of our involuntary membership in such groups? That they control us in some way?

To say “his religion made him do it” is to ascribe to an understanding of religion that is at variance with liberal theories of the individual.  But it is also to make a claim for the predictive quality of sociological groupings that is largely unwarranted by the evidence. While sociological and historical evidence might permit the claim that Protestants work hard, there is no evidence that should be permitted in court or in any context with rigorous standards of evidence, given our present state of knowledge, to warrant a claim that a particular person, because he is a Protestant, works hard—or worked hard on a particular day. Or that because a person might be denominated Muslim due to his social location, or his personal choice, he performed any particular action.

What does Ginzburg tell us about Menocchio? Before Menocchio we thought everyone in the sixteenth century had a defined religious identity. Certainly all peasants. After Menocchio we know that even peasants invented their own identities. And Ginzburg says we also know that there was another possible religious identity that we had under-valued—the identity of the orally transmitted religion of agricultural peoples over centuries, a religion characterized by a this-worldly practicality and immanent mythology. Ginzburg claims that by reading about Menocchio we can have access to this other religious form. But even knowing of this new religion, we wouldn’t have been able to predict that Menocchio himself, as a member of that collectivity, would act or believe in a certain way. How to parse the individual and the collective remains largely uncharted territory in the academic study of religion.

Why do we assign these identities? It could be because our brains are so structured as to require such categories in order to think. Or maybe we do so because it reassures us as to the order of the world. Or maybe it is because we are moderns. Or is it because we are Christians?

A recent report on the State of the Law concerning the President’s Faith-Based and Community Initiative, published by the well-respected and non-sectarian web-based reporter on the initiative, The Roundtable on Religion and Social Policy, summarizes the changes that have taken place over the last eight years:

At its core, the FBCI guarantees a “level playing field” that allows FBOs to compete for social welfare funding on equal terms with non-religious organizations. This guarantee is remarkable in two respects. First, it reflects a decisive shift in the law of the Constitution’s Establishment Clause, away from a regime that excluded “pervasively sectarian” entities, and toward one that permits a far greater range of partnerships between government and FBOs. Second, the guarantee is remarkable because of the scope of administrative change it required. The prohibition on funding of “pervasively sectarian” organizations had been deeply imbedded in federal agency rules and practices, but the FBCI has succeeded in transforming that administrative structure to reflect the law’s wider acceptance of public aid for FBOs.

The report goes on to detail how this transformation was accomplished. As with other executive policies, when the President was unsuccessful in implementing his vision through legislation, he turned to executive orders:

Very soon after he took office in January of 2001, President George W. Bush issued two Executive Orders that set in motion the Faith-Based and Community Initiative. These Orders established Centers for the FBCI in the White House and core federal agencies, and directed the agency centers to identify barriers that prevented faith-based and community organizations from competing on an equal basis for federal social welfare funding. A year later, following a comprehensive survey by the agency FBCI Centers, the President issued another Executive Order, directing federal agencies to remove such barriers and guarantee equal treatment for faith-based and community organizations in federal grants and contracts. By the end of 2004, virtually all federal agencies had complied with the President’s directives. New regulations, covering the full range of federal social welfare funding programs, prohibited agencies from discriminating against FBOs based on their religious character, and ensured FBOs that they could retain their religious identity while providing publicly funded services.

While open legal issues remain, particularly with respect to the right of faith-based organizations to discriminate in hiring, there is no question that it is a remarkable accomplishment, one that would have seemed incredible to many First Amendment scholars ten years ago.

A parallel shift has occurred in the foreign policy arena with the embedding of religion in the State Department after the signing into law of the International Religious Freedom Act in 1999. The act mandated the establishment of an Office of International Religious Freedom within the Department of State, headed by an Ambassador-at-Large that acts as the principal advisor to the President and Secretary of State in matters concerning religious freedom abroad. It also mandated the establishment of the independent, bipartisan United States Commission on International Religious Freedom and a Special Adviser on International Religious Freedom at the National Security Council. An annual report is produced detailing the state of religious freedom in every country in the world—with the exception of the U.S. The President is required by the Act to punish countries that are found not to be sufficiently free. Ten years later these policies reach deep into U.S. foreign policy at every level.

Where do the new President and the Democrats stand on these questions? After the 2004 election, Democrats were widely understood not to have gotten it right about the importance of religious values for Americans. Potential candidates were supposed to learn how to talk about religion. Some tried and sounded awkward, but both Barack Obama and Hillary Clinton understood this need and both spoke naturally about their respect for religion and about their own religious commitments in their campaigns. Both embraced the notion that religion belongs back in politics. On July 1, 2008, then-candidate Obama gave a major speech endorsing government partnership with faith-based organizations and promising to beef up President Bush’s efforts with the creation of a new Council for Faith-Based and Neighborhood Partnerships. President Obama has defended his opposition to gay marriage on religious grounds. When she accepted Obama’s nomination as Secretary of State, Hillary Clinton spoke of American faith in every person’s “God-given” right to live up to his or her potential. Examples could be multiplied.

Understanding Americans to be fundamentally religious is now deeply embedded in government and in our public culture. That is the default position. Not secularism. Chaplaincies are proliferating across the U.S. to serve Americans in the military, in hospitals, in colleges, in the workplace—and in crisis situations. While President Obama is careful to speak always with respect for people who are not religious, all the evidence suggests that we are still a faith-based nation.

Texas authorities say they were worried about the “culture” at the ranch. The Supreme Court of Texas, in its May 29 decision ordering the return of the children, said that the state was concerned that the ranch had “a culture of polygamy and of directing girls younger than eighteen to enter spiritual unions with older men and have children.” What is a “culture of polygamy”? Is it separate from or the same as the rest of the culture of the Yearning for Zion ranch? How are they related to what Texas authorities called “mainstream culture”? During the time that the Yearning for Zion children were in the care of the state, first held as a group with some of their mothers in a sports arena in San Angelo, Texas, and subsequently in individual foster homes, while the Texas authorities condemned the ranch for its “culture,” it also was at pains to demonstrate that it was respecting the children’s religious freedom and accommodating what they termed their “unique” cultural needs. The Texas Department of Family and Protective Services quickly produced a “Cultural Awareness Guide for Children from Eldorado” and a “Model for Care for Children from the Yearning for Zion Fundamentalist Latter Day Saints Sect,” which they posted on their website. The color red was eliminated from state facilities where the children were staying out of respect for the community’s aversion to the use of the color before the coming of Christ, who will be robed in red. Providers were reminded of the FLDS’s rules: no alcohol or tobacco; no T.V.; only organic food; modest clothing. In their periodic online news briefs, the Department assured the public that the children “would be allowed to worship freely,” that the Department “respect[s] and value[s] their strong sense of faith,” and that the children would not be “exposed to mainstream culture too quickly.” These children apparently needed both to be rescued from their culture and “affirmed” in their culture.

Culture, it appears, is both part of the problem and part of the solution. In any event, the word is indispensable. The word is used throughout the Texas filings and reports. Why culture? Tomoko Masuzawa has reminded us in her masterful essay in Critical Terms for Religious Studies, that the term “culture” has had many meanings since it first appeared in its modern sense in the eighteenth century. It is “dangerously capacious, semantically vague and confused, and finally taken as a whole, inconsistent.” And yet it is also, she acknowledges, “remarkably serviceable,” even foundational to our sense of reality, and “thoroughly naturalized in our everyday discourse.” Culture has, over this time, also strangely and ambiguously been linked to “religion,” as Masuzawa discusses. Sometimes religion is the same as culture; sometimes it is a part of culture; sometimes it precedes culture; sometimes it comprehends culture. The word has arguably only become more unglued in the ten years since Masuzawa wrote her essay. Thoroughly discredited by anthropologists, it is now everywhere. Culture both makes us whole and keeps us in bondage. And it also continues to be ambiguously related to religion. Together, perhaps, they appear to keep naturalistic explanations at bay and preserve a space for values, while enabling social engineering. The language in court filings in the Texas case moves uneasily among different accounts of what is wrong: a “pervasive system of belief”? A culture? Forced underage sex masquerading as “spiritual” marriage? Social pathology or bad religion?

For legal purposes, characterizing a practice as cultural, rather than religious, is arguably a useful way to limit legal restrictions on the regulation of religion; religion then can be reserved for what is good while culture can be good or bad and regulated accordingly. (Thus, the insistence, for example, that female circumcision is cultural rather than religious.) In U.S. law, it is the distinction between opinion and act that has permitted the regulation of unpopular religious practices. In 1879, in Reynolds v. U.S., the Supreme Court announced that constitutional protection for religious freedom was limited to opinions, while acts were punishable by law. Confirming the conviction of Mr. Reynolds on a charge of bigamy, the Court announced that “polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people . . . Polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism.” The 1879 Court refused to condemn as prejudicial the trial judge’s charge to the jury that “you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children—innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land.” The Utah court then, like the State of Texas today, was worried about the “culture of polygamy”—an insidious and infectious disease-like phenomenon that loomed over children like a monster from a horror movie.

The opinion/act distinction that enabled the legal reinvention of Mormon religion in the late-nineteenth century faltered briefly in the twentieth century. In 1972, the Supreme Court affirmed the constitutional right of Amish parents to withdraw their children from high school, in violation of state compulsory schooling laws, and to teach them instead the pre-modern skills of housekeeping and farming. Supported by the expert testimony of John Hostettler, a leading scholar and activist on behalf of the Old Order Amish community, the court lovingly recounted Amish history: “The history of the Amish sect [begins] with the Swiss Anabaptists of the 16th century who rejected institutionalized churches and sought to return to the early, simple, Christian life de-emphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world.” Full of admiration for the simple life and strongly affirming the rights of parents with respect to “religious training,” the majority opinion in the Yoder case makes clear that what is characteristic of really religious people is that their religion and their culture are coextensive: “Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents.” The “culture” of Jefferson’s yeoman was ironically protected in the Yoder decision as religion. In Yoder, the comprehensiveness of culture seemed beneficial to children.

But Yoder has had no successors. While we continue to permit home schooling, we have drawn back from whole-hearted approval of the promise of insular communities to save us from ourselves. Not all religious people are the Amish. Indeed perhaps even the Amish are not the Amish, in the Yoder sense. Religion as coterminous with culture has proved a dangerous legal idea. In 1990, in an opinion denying constitutional protection to the use of peyote by the Native American Church (Employment Division v. Smith), the Court returned to and reaffirmed the opinion/act distinction made in Reynolds. Culture is now divisible again, legally speaking, and religion is thereby subject to extreme makeover by the government just as Mormon life was in the nineteenth century. Now we can protect FLDS culture insofar as it is like our imagined Amish community—foster families interviewed on the radio after the children were returned spoke admiringly of the girls’ maturity, of their cooking and sewing skills and deep religious faith—and condemn it insofar it is “odious”—FLDS women were mocked on YouTube for their “creepiness.” And still, we can insist—as Texas authorities have insisted to the media—that there is no threat to religion. We are not changing religion. Just culture.

Lilla masterfully describes the problem posed for all would-be Christian political theorists and some of the various efforts made over the centuries to solve it. Christianity was not originally a religion for government; the inherent instability in the Trinity is a troubling foundation for a political order; and the Christian god’s movement between immanence and transcendence causes constant tension. Lilla delineates the arguments of some very smart people who worry about the problem. His passion and clarity make this book good to think with.

But there were several points that troubled me.

First, Lilla tells us that he was originally motivated to explain the revival of messianic political theology in interwar Germany. He says that he came to see the liberal Christianity that set up this revival as a product of the previous nineteen centuries of experiments in creating a Christian political theology, and its failure as, in a sense, foreordained. Having begun this project as one of genealogy, though—an effort to explain the failure of German liberal Christianity—the book seems to have been written in reverse so that the failure of German liberal theology is made to seem the inevitable outcome of any Christian political theologizing. Beginning on a world stage with three types of religion structuring a comparative treatment of political theology, Lilla ends with the very particular story of post-Hobbesian/post-Rousseauian/ post-Kantian German Protestant Christian theology. What might be convincingly explanatory from a genealogical viewpoint becomes startlingly parochial and alarmist, even Huntingtonian, in this reverse treatment.

Secondly, what Lilla calls “the human condition” turns out to be the condition of one strain of protestant theology. Protestant Christian political theology is made first uniquely triumphal in its creation of The Great Separation and then uniquely corrupt in its underwriting of the Holocaust. Other religions—indeed, other Christians, Protestants and otherwise—are virtually absent. That others have also experimented politically with the built–in tension between immanence and transcendence—as well as with other creative tensions present in other religious cosmologies—is patent. To write of comparative political theology in the twenty-first century without so much as a nod to other Christian and non-Christian political philosophies is surprising, to say the least.

Thirdly, the book makes copious use of the first person plural. It is not at all clear who “we” are. All moderns? All Christians? Or all Americans? To the extent that he is speaking to the latter, it is important to note that American Christianity—and European Christianity outside of Germany—is different from German Protestantism. With respect to the U.S., German liberal theology is exemplary only for U.S. university trained theologians, not for most American Christians. For most American Christians, the accommodation between evangelical Protestantism and U.S. civil religion, while arguably complicit in extending the lives of various unjust legal structures, is also arguably far less dangerous than the German messianic variety has been in the past. American Christianity is moralistic and pietist, but it is also tempered by a common sense pragmatism and endless division.

Lastly, this book is written as a cautionary tale, urging us to have the courage—and the will—to maintain what Lilla terms “the Great Separation” in order to avoid a fall into the temptation of messianic politics. It is Lilla’s view that the heirs to the Great Separation, an experiment he terms a unique adventure in truly secular politics (a politics built on Hobbesian psychology) are at a crossroads, a crossroads where they must choose the hard road of separation rather than the soft, seductive—and potentially disastrous—road of a new political theology, one of comprehensiveness and assurance. He has a lot of company today in those who warn of an impending return to “theocracy.”

Lilla writes: “Political rhetoric in the United States, for example, is still shot through with messianic language, and it is only thanks to a strong constitutional structure and various lucky breaks that political theology has never managed to dominate the American mind.” I disagree. While there is real evidence from time to time of “the paranoid style” in American political life, there has never been a serious danger of messianic politics. And it is not just the Constitution and luck. American religion, generally reflecting American associational life, is too fissiparous and lacking in institutional infrastructure to stage a takeover.

It would have been enough for Lilla to frame this book as an explanation of the genealogy of bourgeois protestant German Christian liberal political theology and the long shadow that it casts over the post-enlightenment world order. To see that theology as inevitable and as uniquely significant as a diagnostic for comparative political theology undercuts the very conversation Lilla begins with, one that is well worth having—a serious comparative study of political theologies, one that acknowledges that separation is also a political theology.