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

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

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

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

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

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

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

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

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

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

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

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

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

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

How odd, since that is exactly what happened in India in the 1950s and 1960s. In those decades, Article 26 was brandished all over India in response to reformist legislation passed in most states in order to give effect to Article 17. These “Temple Entry” laws opened Hindu temples to Dalits—people considered untouchable by caste Hindus. However, unlike American jurists and judges, the makers of the Indian Constitution had foreseen constitutional conflict, hence the freedom of religion clauses (Articles 25 and 26) came qualified ab initio with declarations of the ability of the Indian state to regulate the non-religious aspects of religion and to undertake social reform. Thus, when Gouda Saraswath Brahman trustees attempted to keep the temple of Sri Venkataramanah, in Mulki, South Karnataka, free of pollution from untouchables by claiming that it was a denominational temple and hence entitled to limit its benefits to members of the denomination or those admitted at their discretion, the Supreme Court stated that the constitutional clauses enabling the state to open Hindu temples to all Hindus (i.e. including Dalits) overrode other considerations. And when the Gujarati Swaminarayan Sampradaya, or Satsangis, claimed exception, in Sastri Yagnapurushdasji v. Muldas Bhundardas,  on the basis that they were not Hindus at all, an activist judiciary, led by then Chief Justice P.B. Gajendragadkar, committed all those epistemic sins that writers in this series have discussed: he reduced Hinduism to certain basics, and then told Satsangi escapists that they jolly well were Hindus and had better behave like good, modern, but also authentic Hindus. In pursuit of a century-long effort to make Hinduism ethical and democratic, an act was passed by the state of Madras in 1951 reinforcing the power of a government department called the Hindu Religious and Charitable Endowments Commission to inspect and supervise Hindu temples and maths (monasteries) and audit their accounts. In response, several Article 26 cases were lodged, which led to certain sections of the Hindu Religious and Charitable Endowments Act (1951) being deemed unconstitutional. But in one case, the judges of the Madras High Court also explained why the freedom of religion clauses did not offer a secure escape route from the reformist agenda of the Indian state. Charmingly, they said it was because India was not America—in India there was no rigid and complete wall of separation between the Church and State.

All this is old hat, and eminent American scholars have commented extensively on the Indian judiciary’s predilection for unseemly meddling in religious matters. Striking a somewhat lone note, Marc Galanter did suggest five decades ago that the Indian case was neither unique nor necessarily distinct from the American one—and anticipating Talal Asad, he observed: “No secular state is or can be merely neutral or impartial among religions, for the State defines the boundaries within which neutrality must operate.”

But however universal these legal conundrums are revealed to be, to the outside observer (in this case, me) it does appear that Americans have rather abruptly woken up to a problem that was surely always there—since both the constitutional provisions and the religious denominations have been around for much longer. Not being acquainted with American case law nor with the American religious landscape, I wonder whether the question is really “Why now?” Were all religious folk behaving just right until that moment, or had they taken legal restrictions lying down, not noticing until twenty years ago that such restrictions threatened the freedoms supposedly intended by the founding fathers of the nation? If, as Haefeli suggests, toleration is inevitably a partisan phenomenon (and I totally agree with him there), what element of the partisan equilibrium was shaken in the U.S.A. twenty years ago, around Smith? In India, there was a very specific socio-political context in which Article 26 was deployed in the 1950s and 60s, which I have cursorily outlined above. That context, incidentally, has changed. Dalit activism has long since moved on from temples and found greater value and justice in accessing the material means of social advancement—educational facilities, government jobs, and political representation. Since the 1980s, Article 26 has again been frequently deployed, but this time by institutions that have since been clubbed together under the bureaucratic appellation of Minority Educational Institutions. Seeking autonomy, in most cases from the supervisory authority of universities that they are affiliated with, or exemption from general rules of admission of students or appointment of staff, including (note the irony) rules based on affirmative action (i.e. Dalit empowerment) policies, these institutions seem to be behaving in very similar ways to the post-Smith religious alliances in the U.S.A. India, it appears, has become more similar to America in the past half century.

I will dare more, and wonder aloud about the status of “belief” in this tortuous history of religious freedom, or claims thereof, in these two countries. It appears to me that in spite of the demonstrably greater frequency of appeals to it, “belief” threads in and out rather than providing a stable central pattern at the core of a peculiarly modern re-inscription of religion. In India at least, religious reformism, which has afflicted Parsis, Sikhs, Christians, Muslims, and Hindus since the early nineteenth century, was not even rhetorically about identifying and defending true “belief” alone. If it had been only a matter of untrammeled possession of beliefs, the freedom of religion clauses in the Indian Constitution could have permitted the Saraswat Brahmans and the Dalits in Mulki, to each maintain their own beliefs and carry on with their unequal daily lives as usual. The new “belief-centrism”—of which P.B. Gajendragadkar et al were guilty—was essentially about ethically validated belief. In that he may be considered an intellectual descendant of the “father of  modern India,” Rammohan Roy (d. 1833), who believed for a while that he had found such socially responsible belief in The Precepts of Jesus—until missionary dogmatism convinced him that a new and truly monotheistic and un-superstitious religion was needed in order to create an amicable society with women’s rights and so on. About the same time, a man with a very different social vision fulminated against Protestant missionaries going on about caste disabilities. The upper caste Tamil Christian poet, Vedanayagam Pillai, told mission authorities in London that a new generation of missionaries was getting it all wrong by insisting on caste de-segregation in church. Belief is what ought to matter, he said, whereas: “…who should preach on the faith of the Son of God [but] preach now all the day long …  upon the subject of eating with the Pallar and Parayer promiscuously.” The missionary authorities disagreed—and Pillai was excommunicated in 1829. I wonder, in the light of these counter-intuitive examples—the “reformist” foregrounding social ethics and the “orthodox” asserting faith—whether the novelty of “belief” is less its adoption as a normative description of religion per se, or rather, its increased use as a rhetorical device especially in contexts where specialist religious authority is challenged.

Several of the posts inaugurating this discussion of religious freedom, including Elizabeth Hurd’s and Peter Danchin’s, note that intrinsic to the modern understanding of this concept is the idea that religion is a matter of private conviction rather than of public performance, a matter of belief rather than of ceremonial. This understanding of religion has commonly, and correctly, been traced to tendencies that became dominant during the Reformation, as signaled by the Protestant critique of the Catholic ritual economy of salvation. It has less often been observed, however, that the separation of religion from such external matters was frequently expressed through more ancient Christian ideas, such as the distinction among the natural, civil, and ceremonial portions of the Mosaic Law. The last category had supposedly been abrogated by the Gospel and Christ’s redemptive sacrifice, which ended the sacrifices and other rituals of Judaism, all of which were regarded as no longer necessary for salvation. During the Reformation, many Protestants reinterpreted these ideas, posing again the question of the relationship between the civil and ecclesiastical powers, both within the Israelite kingdom when it existed and, subsequent to the promulgation of the Gospel, within a radically different economy in which, in Paul’s terms, “grace” was opposed to “law.”

Recently, historian Eric Nelson has argued that the notion of a “Hebrew Republic” as a model for thinking about the ideal relationship between Church and State influenced the development of religious toleration. Nelson is right to focus on the importance of such theological debates to modern ideas of polity, and especially of freedom of religion. It is clear that, even at a time when there were few Jews in England, and prior to the Jewish Naturalization Act of 1753, imaginations of the Hebrew Republic were central to the articulation of the idea of religious freedom by many British Protestants. However, this Republic has often served as a negative example, of a time when law and religion were inappropriately commingled, to the detriment of both. The more “spiritual” dispensation of the Gospel represented, at the same time, the birth of a State that was secular in the sense of being clearly divided from the matters of conscience that, as opposed to the externals of Mosaic ceremonial, were now regarded as constituting the essence of religion.

I have become increasingly convinced that what marks this Reformation discourse of secularism and religious freedom as Christian is precisely its use of Judaism as a foil or counterexample, in addition to its transformation of other associated theological distinctions such as Paul’s oppositions between “flesh” and “spirit” or “law” and “grace.” But it is also clear that these transformations did not constitute a simple continuity with what had come before. Indeed, to borrow Charles Taylor’s characterization of the development from Christianity to secularism, this represented something like a “mutation” of tendencies already present. This characterization is apt, as long as we do not take it to imply any standard of orthodoxy: all living organisms are, in a sense, mutations.

During the same period that Taylor identified as central to the transition between Christianity and secularism—namely, Deism—we witness an exacerbation of several tendencies that were bound up with the self-definition of Christianity as against Judaism. I will identify and briefly discuss three such tendencies: internalization, universalization, and the critique of heteronomy.

Internalization is the easiest to grasp, and the most obvious. Indeed, as noted above, the redefinition of religion as “belief” or “conscience” has been widely pointed to as a dominant tendency in the modern treatment of religion. Deists simply took this much further, condemning nearly all ceremonial as irrelevant to the essence of natural religion. While John Toland used the irrelevance of ritual to salvation as an argument for the naturalization of the Jews and the toleration of their peculiar forms of worship, others, such as Thomas Morgan, contended that, as religion had nothing to do with external practices, the idea of an “established religion” (as opposed to an “established Church”) was a contradiction in terms. Although he argued against ecclesiastical oppression, Morgan redefined religion as pure freedom and argued that it could, in principle, never be coerced.

The self-definition of Christianity as a universal dispensation, which went back to Paul’s idea that in Christ there is “neither Jew nor Greek,” also accelerated with the Deist condemnation of anything resembling particularism, including not only the strange ritual laws observed by the Jews but also the miracles and revelations on which these laws were based, which violated natural law. Deists instead grounded natural religion on the eternal, and universal, foundation of human reason. In keeping with this distinction, Matthew Tindal, who argued that Christianity was merely a “republication” of the religion of nature, invoked the bifurcation in antique Gnosticism between the New and Old Testaments, between Christ and the God of the Jews. With this rejection of its Jewish heritage, Christianity could become truly excarnated and realize its full potential for universality.

At the same time, this bid for universalism constituted a rejection of what were, according to Tindal, the “merely positive and arbitrary” ritual laws of Mosaic tradition. What Deists most objected to in these laws was the manner in which they violated human autonomy, which depended on our ability to know and perform the moral law. Anathema to this notion of autonomy, and therefore abhorrent to Deists, was the idea of a God who could command us against reason and instinct, of a Yahweh who demanded blood sacrifices and promulgated his statutes as arbitrary fiat. Carl Schmitt was right to point to radical Protestantism and Deism as moments of exclusion of both the miracle and the sovereign “exception”; however, in so doing, he was defending the prerogatives of the God of the Hebrew Bible, at least as understood by Deists.

A number of these ideas were taken up and systematized by Immanuel Kant, who defined Enlightenment in opposition to heteronomy, or the acceptance of external authority. Kant’s thorough identification of religion with both reason and the internal sense of duty, led him, in his Religion within the Limits of Reason Alone, to label Judaism as “really not a religion at all but merely a union of a number of people…under purely political laws…[that] are directed to absolutely nothing but outer observance.”

The redefinition of religion as freedom of conscience simultaneously “liberated” religion from control by the State and rendered this freedom nugatory. Indeed, the same collapsing of religion into conscience or a purely internal condition, which led Thomas Morgan to argue for the impossibility of an “established religion,” is entirely compatible with any degree of enslavement of the body, now shorn of any spiritual value. That this is true is shown by Thomas Hobbes’ use of very similar arguments in the name of an absolute sovereignty in which the ecclesiastical power has been collapsed into the civil. I therefore think Peter Danchin is right to invoke Michel Foucault’s description of Kant’s kingdom of ends as a “contract of rational despotism with free reason.”

In this we arguably see one of the distinguishing features of modernity that cannot be explained on grounds internal to the theological debates that form part of the genealogy of religious freedom. Instead, there is the possibility of reading these trajectories I have outlined—toward internalization, universalism, and autonomy of conscience—as epiphenomenal to the rise of bureaucracy or the Panopticon. While the line between inner and outer, private and public, is inherently unstable, it is in these extreme theological formulations of religion as utterly incorporeal that we witness the construction of religion as precisely that object which cannot come into conflict with the State. In other words, this redefinition of religion represented a strategy for conflict avoidance, in the sense that it served the pragmatic objective of avoiding the possibility of intersection and friction between Church and State, and that it was flexible (or slippery) enough to be deployed differently, according to convenience, in different contexts.

Although these theological debates ended long ago, we are arguably still witnessing their aftermath. The Smith case (on peyote) discussed by Winnifred Sullivan in her post highlighted an “endgame” very similar to that outlined by Morgan or Hobbes: the point at which religion vanishes from the perspective of civil society or ceases as an independent power. The push-back against Smith signals a rejection of this (dis)solution of the problem of religion. At the same time, the inadequacies of this solution, as applied to other cultures that do not share the same set of theological presuppositions nor the same trajectory of modernization, have become increasingly apparent. Where we go from here is a question that cannot be answered by genealogy.

—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.