As part of a joint project between The Immanent Frame and Religion Dispatches, RD contributing editor Austin Dacey has written a series of posts on religious freedom in the United States. His latest piece tackles Winnifred Fallers Sullivan’s “The impossibility of religious freedom” and potential alternate regimes for legislating religious freedom in the United States.
Posts Tagged ‘law and religion’
The Department of Religious Studies at the University of California-Santa Barbara, with support from the Cordano Endowment in Catholic Studies, will host a conference on “Freedom of (and from) Religion: Debates Over the Accommodation of Religion in the Public Sphere” from April 30 to May 2, 2015.
A few blocks from my apartment, a neighbor has displayed a placard proclaiming “Defend Religious Liberty.” These words could encompass a range of meanings and raise any number of questions. What, exactly, does religious liberty entail? Who claims it? Who attacks it? But no one is left wondering for long, as the graphics define the intent of the sign more explicitly. Behind the capitalized words, an eagle shares space with an American flag and a cross. Defending religious liberty in the United States, the illustration bellows, is patriotic. And it means protecting Christianity.
This sign, I think, signifies the key issue for liberals in the wake of the Supreme Court’s 2014 term major religion decisions—Burwell v. Hobby Lobby, Wheaton College v. Burwell, and Town of Greece v. Galloway. The core concern is not with the mixing of religion and profit, or sexual matters. Instead, it is a gnawing sense of unease about the solicitude granted to the type of religion that has long been powerful, but is presented by its adherents as marginalized; in short, the problem lies in the twin-set of power and privilege.
In the wake of last summer’s Burwell v. Hobby Lobby and Wheaton College v. Burwell decisions, many wondered how corporations could exercise religious liberty. Liberal discussions focused on the apparent absurdity of extending constitutional rights to ethereal legal fictions rather than flesh-and-blood human beings. While those who decried the decisions often focused on the Supreme Court’s tenuous definition of personhood, Winnifred Fallers Sullivan’s essay shifted critical attention to shaky assumptions about religion. According to Sullivan, liberal critics have overlooked tensions within their own models of religious freedom. These tensions reveal “the ramshackle structure of current religious freedom jurisprudence in the U.S.”
In this post, I want to revisit Sullivan’s focus on the category of religion. Rather than expand on her critique of the “rotten core” of religious freedom, however, I would like to use the Hobby Lobby decision to consider what kind of religious exercise the court protects. In my view, the court has invented a novel form of religious practice in which people protect their property from the polluting contact of other people.
Winnifred Fallers Sullivan is arguably the premier scholar of law and religion in the United States. She brings to the field of law an unparalleled degree of sophistication and historical and anthropological knowledge. When she says that all religious freedom laws are rotten at the core, that claim has to be taken seriously. The core of the problem, she writes, is the distorting effect of the demand that the state distinguish the religious from the nonreligious. The religious life of most Americans, “incredibly varied, creative, and entrepreneurial,” has become so disconnected from the law’s understanding of religion that the law should abandon the use of the category, “religion.”
As Sullivan notes, the Religious Freedom Restoration Act (RFRA)—the basis of the Burwell v. Hobby Lobby suit—was a reaction to the “notorious” Employment Division v. Smith decision, which limited the scope of the free exercise clause of the First Amendment. There are reasons for the notoriety and Smith was widely condemned. RFRA passed by overwhelming margins because most Americans thought that the tradition of specifically religious accommodation was valuable. Since Colonial times, Quakers have been exempted from oath-taking and military service. Catholics were permitted to use sacramental wine during Prohibition.
Our choices are clear: either we sometimes accommodate, or we never accommodate.
This summer, the Supreme Court was once again at the center of the American culture wars. The media and many Americans on both sides of the political spectrum saw the Burwell v Hobby Lobby decision as a case of religious freedom versus women’s rights. The headlines blared: “How the Catholic Church Masterminded the Supreme Court’s Hobby Lobby Debacle,” “Can Corporations Go to Hell?”, “Hobby Lobby: Does God Hate Obamacare?” and “Hobby Lobby case: Religious freedom’s worth more than $35.”
The court, which ruled 5-4 in favor of Hobby Lobby, was no less divided than the press. The two outspoken former prosecutors on the bench, Justices Samuel Alito and Sonia Sotomayor, pulled no punches in their rival opinions.
In the last week the US Supreme Court has acted in two religious freedom cases (Burwell v. Hobby Lobby and Wheaton College v. Burwell) in favor of conservative Christian plaintiffs seeking exemptions from the contraceptive coverage mandate of the Affordable Care Act. Liberals have gone nuts, wildly predicting the end of the world as we know it. While I share their distress about the effects of these decisions on women, I want to talk about religion. I believe that it is time for some serious self-reflection on the part of liberals. To the extent that these decisions are about religion (and there are certainly other reasons to criticize the reasoning in these opinions), they reveal the rotten core at the heart of all religious freedom laws. The positions of both liberals and conservatives are affected by this rottenness but I speak here to liberals.
In a recent essay on equality and citizenship in a multi-religious Sudan, Noah Salomon describes a commitment among development experts to equality before the law as a “non-ideological” solution to the problems of post-conflict societies. Salomon disagrees with the consensus, suggesting rather that “law, the institutions which promote it, and our relationship to them enfold deep ideological and political commitments which require a whole host of presumptions about justice and how best to achieve it.” While the rule of law is assumed to govern from a neutral public space that has transcended ideological and political particularities, the hegemony of rule of law discourse should not be taken as a mark of neutrality. It would be a mistake to remove the rule of law from conversations about power, history, difference, and governance.
The same may be said of secularism.
On April 7th the Quebec Liberal Party won a majority government in the 41st Quebec general election, with incumbent Parti Québécois, and its controversial Charter of Quebec Values, finishing second.
In his new book, Securing the Sacred, Robert M. Bosco examines how secular states attempt to understand and engage religious ideas and actors in the name of national security.
On July 3, 2013, after four days of intense public protests, Egyptian President Mohamed Morsi was removed, by force, from elected office.
As part of the discussion and workshop on “Beyond Critique,” Lorenzo Zucca, Reader in Jurisprudence at King’s College London, writes about the definition of religion as it relates to Scientology.
On November 7th, 2013, on the heels of a heated public debate about the role of religion in public life, the government of Quebec tabled its controversial Bill 60, “Charte affirmant les valeurs de laïcité et de neutralité religieuse de l’État ainsi que d’égalité entre les femmes et les hommes et encadrant les demandes d’accommodement” (Charter affirming the values of state secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests). The legislation, introduced by Bernard Drainville, the minister for Democratic institutions and active citizenship, seeks to affirm the religious neutrality of the state, specifically by prohibiting public sector employees—including those working in hospitals, schools, daycare centers, and universities—from wearing “signes ostentatoires” [conspicuous religious symbols], examples of which include hijabs, kippas, Sikh turbans, and “large” crucifixes. The legislation also proposes to amend Quebec’s Charter of Human Rights and Freedoms, in order to enshrine the equality of men and women as the highest human right, to which other rights (e.g. freedom of religious expression) would be subordinated.
Is religion a valid category of scholarly inquiry? In this post, I briefly set out three distinct approaches to the study of religion: criticizing religion, upholding religion and disaggregating religion. Although I cannot make the full case here, I sketch a preliminary defense of the third approach, in the context of recent debates in political theory.
By “criticizing religion,” I mean not the critique of the beliefs or practices of self-described religious individuals or groups but rather the critique of the concept of religion as a scholarly category. According to a number of scholars (often influenced by Foucauldian or post-colonial thought), the category of religion is deeply implicated in the history and practice of western statism and imperialism. The only appropriate scholarly stance towards this object is one that is critical and skeptical.
Religious freedom has become an international concept: As the scope of the recently concluded Politics of Religious Freedom project attests to, the grammar of religious freedom has spread far and wide, creating a broad and complex field where international norms and procedures frequently clash with deeply embedded local conceptions of law, religion, and freedom.
When one thinks of politics and religion in China, one often imagines the state as an omnipotent power, invincible and all encompassing, exerting direct control over the lives of millions of religious practitioners in Chinese society. But in reality that control is mediated by a bureaucratic system for the management and study of religion that has been undergoing significant transition in recent years.
First, religious studies in China does not have independent academic departments but exists under the institutional umbrella of departments of philosophy; students need to be enrolled in a philosophy department in order to major in religion, and religious studies professors are generally hired through philosophy departments. As a result, religious studies as a field has little institutional or intellectual autonomy. Second, it is a discipline that allows for at least two distinct career paths: that of scholars who conduct research on religion and that of civil officials who do “religion work,” such as serving in central or local state administrations of religious affairs, or working in state agencies dealing with ethnic minority groups that have specific religious traditions, such as Uyghurs.
Everyone in China knows that official religious policy has only a nominal relationship to religious practice. The complaint comes from temple managers who are unable to register their temples, from Christian pastors tired of running their churches underground, and just as loudly from the atheist state itself and the Communist Party officials charged with enforcing the policy. Why does China continue to promote religious policies that do not fit reality and that satisfy no one?
In contrast to its religious policy, China has not been frozen at all in other policy realms. In the economy, for example, the past few decades have seen the rapid move from the agricultural responsibility system, a spurt in collective township and village enterprises followed by a general privatization, and the successful resolution of the government’s fiscal crisis in the 1990s. There are arguments about whether policy makers were leading or only following these developments, but either way they have shown a nimble ability to adapt—”to cross the river by feeling their way from stone to stone,” to borrow a phrase that Deng Xiaoping was fond of using. In the river of religion, however, they are still searching for the next stone.
The complex and ever-changing relationship between the Chinese state and the nation’s religions stretches back thousands of years. While the state never struggled with religious leaders for power, it governed an embedded religiosity in the population, one best described as diffused, non-exclusive, and pluralistic. As a companion to The Immanent Frame’s newly launched series of essays on the state of religion in China, this piece embarks on a brief historical survey, outlining the wide variety of beliefs and practices that religion in China encapsulates, and paying particular attention to the events and philosophies that have shaped the policies of the atheist People’s Republic of China.
Mark Fathi Massoud, Assistant Professor of Politics and Legal Studies at the University of California, Santa Cruz, examines the trials and tribulations of law in Sudan in his new book, Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan. In an interview with Jadaliyya, Massoud speaks about his motivation to uncover the essence of how law—and lawlessness—operate in the context of fragile states. Massoud also elaborates on his topic in a blog post at the Critical Investigations into Humanitarianism in Africa Blog.
Earlier this summer, The Immanent Frame published an off the cuff exchange about the State Department’s new initiative to engage religious communities in US diplomacy. Conversation and critiques are still going strong; Elizabeth Shakman Hurd, an original contributor to “Engaging religion at the Department of State,” has penned a commentary for Al Jazeera America in which she critiques US faith-based engagement abroad as a violation of the separation of church and state.
In its annual survey, “Minority Religious Communities At Risk,” the First Freedom Center of Virginia observed intensified contention over the right to freedom of religious expression in both Canada and the United States. As evidence, the editors highlighted a major Canadian Supreme Court decision as well as public criticism of the conservative government’s creation of an Office of Religious Freedom; for the United States, the editors cited the litigation over the 2011 Patient Protection and Affordable Healthcare Act. The contention in both countries seemed to pit conservative religious-freedom advocates against a progressive secular establishment. However, as I argue here with the Canadian case, the situation is more complicated.
Allison Kaplan Sommer and Dahlia Lithwick write at The New Republic write about the struggles of an emergent form of feminist protest among Modern Orthodox Jewish women in an Israeli city. The article profiles a struggle against the unofficial gender segregation that these women are sometimes pressured to comply with.
In Contesting Secularism: Comparative Perspectives, editor Anders Berg-Sørensen compiles works from leading scholars to provide an interdisciplinary, comparative approach to the debate of religion and secularism in the public sphere.
Dennis J. Goldford was recently interviewed by Religion Dispatches Magazine about his new book The Constitution of Religious Freedom: God, Politics, and the First Amendment, which explores the notion of “separation of church and state” and the religious identity of America.
A judge in California ruled on Monday that teaching yoga in public schools does not violate the U.S. Constitution’s separation of church and state. The ruling came as a response to a lawsuit brought forth by parents in the Encinitas school district, in which the parents argued that teaching yoga in public schools was a form of indoctrination.
The U.S. Supreme Court ruled 5 to 4 on Wednesday that the Defense of Marriage Act (DOMA), a 1996 law that denied federal benefits to legally married same-sex couples, is unconstitutional. The Court also declined to rule on Proposition 8, a California case that banned same-sex marriage, on technical grounds, deciding that the case was improperly before the Court. The following roundup presents a range of reactions from both sides, with a focus on the religious aspects that have long influenced this debate.
On September 27-29, 2013, the Department of Religious Studies at Indiana University-Bloomington will host a conference entitled “Religious Studies 50 Years after Schempp: History, Institutions, Theory.” Conference organizers have issued a call for papers.
In Debating Sharia: Islam, Gender Politics, and Family Law Arbitration, editors Anna C. Korteweg and Jennifer A. Selby gather a multidisciplinary group of academics to tackle the challenge of promoting diversity while protecting religious freedom and women’s equality.
This short piece attempts to come at the current debate on law and religious freedom from two unusual angles. I end by looking at the strange and revealing positioning of “religion or belief” in current legislation in England and Wales. And I begin by putting a different spin on religious freedom by exploring the terrifying freedom of the concepts of religion and belief. We have never needed the rise of Al Qaeda, so-called Islamicism or a hardline religious right to terrify us with a resurgent specter of specifically religious (as opposed to purely “political”) “terror.” Instead of bearing down on us like some old specter of the Turk or Moor at Europe’s gates, the terror of religion emerges—or insurges (if “insurge” can be made into a verb)—from within the normative conceptualizations of religion in the so-called modern West.
A Texas judge has ruled on the case of the Texas cheerleaders who were using banners with Christian Bible verses on them at football games at their public high school.
I would like to begin with a famous case in Egypt that, though over a decade and a half old, remains salient for thinking about religious freedom. This is the apostasy case of Nasr Abu Zayd, the professor of Arabic and Islamic studies who was declared an apostate by the Egyptian courts, and whose marriage was forcibly annulled as a result. The case was raised using a highly controversial principle within Egyptian law, and much of the debate was about whether its use was acceptable within this case. This principle was called hisba, and it technically means, “the commanding of the good when its practice is manifestly neglected, and the forbidding of the detestable when its practice becomes manifest.”
The child, as the psychoanalytic theorist Adam Phillips points out, “remains our most convincing essentialism.” By this he means that at a time when racial, gender, and even sexual identities are increasingly understood to be constructed, permeable, and ever shifting, the category of childhood—with its razor-sharp counterpoint of adulthood—remains steadfast and enduring. Legal definitions, of course, reinforce this clear demarcation, with eighteen being the moment one crosses the presumed divide from childhood into adulthood. That some adults remain perpetual children—regressed, childlike, or developmentally arrested—long after they cross the temporal barrier between childhood and adulthood is as indisputable as is our widely accepted awareness that continuums of development make childhood and adulthood highly variable, evolving, and overlapping identity positions for us all. A fifteen-year-old looks, acts (we hope), and understands very differently than a six-year-old, despite the fact that both are understood to be children.
While greatly admiring the other pieces in this series and the humanist sensibility and critique that pervades them, I will suggest in this essay that it is, in part, the very dichotomy between the legal and the religious, what I will call separationist thinking, that hobbles our capacity to think clearly about what happened and why. I will suggest that there are not, on the one hand, “specifically religious grounds” apart from the legal or, on the other, “primarily legal” ones apart from the religious. The two are deeply implicated, one in the other. The sex abuse crisis is, in some sense, also a church-state crisis.
One of the major achievements of the past quarter century has been the growing awareness of the prevalence and damaging psychological consequences of the sexual abuse of children. State child protection authorities substantiated 63,527 cases that involved childhood sexual abuse in 2010, the last year for which figures are available. A survey by the Centers for Disease Control of more than 17,000 adult Kaiser-network members, generally well educated and middle class, found that 16 percent of men and 25 percent of women said they had experienced childhood sexual abuse. And yet, it is remarkable how recently the sexual abuse of children was not taken seriously. Not until 1974, when Congress passed the Child Abuse Prevention and Treatment Act, were states required to establish reporting requirements in suspected cases.
At the most recent United States Conference of Catholic Bishops, the National Review Board stated that it was crucial for Bishops to be more strict in following their own policies against sexual abuse.
These essays provoked me in a number of ways, especially with their combined penchant for probing raw nerves. Indeed, I didn’t fully understand how raw—let’s say conflicted—I was about religious freedom discourses and practices until this intervention was staged. In the spirit of therapy, then, we can begin: “Hi, my name is Greg, and I’ve led a carefree lifestyle, all along assuming religious freedom is a good thing. I’ve been drinking this cocktail for years; it has become part of my identity. Thanks to these scholars, I’ve been sober for three days.”
Everson v. Board of Education is considered a landmark of First Amendment jurisprudence. That 1947 case marks the first time the Supreme Court held that the disestablishment provision of the First Amendment is binding on the states, and not just on the federal government. The “incorporation” of the principle of disestablishment thus completed the task begun seven years earlier in Cantwell v. Connecticut, when a unanimous Court held that free exercise applied to the states. In Cantwell, the Court overturned the convictions of three Jehovah’s Witnesses, who had been arrested for unlicensed soliciting and a breach of peace.
As several contributors to this forum have pointed out, legal provisions regarding religious freedom do not emerge from history fully formed and self-interpreting. At their core, they are iterations of words and texts, (re)produced and (re)authorized by different persons or groups for different purposes. What they mean depends on local facts.
This contribution expands upon this observation by offering a different story about drafting religious rights in a particular place and time. I will show the ways in which religious rights, as rhetoric, serve not as apolitical instruments, but as indicia of political alliances; not as generic, universalizable norms, but as specific formulations of norms suited to particular moments and in service of particular political programs. In this version of the story, religious rights, rather than conclude conflict and harmonize societies, signpost disagreement.
Adopted in 1950, Article 17 of the Indian Constitution legally abolished untouchability—the ancient Hindu system of social discrimination—forbade its practice in any form, and made the enforcement of any discrimination arising out of this disability a criminal offence. At the same time, the Indian Constitution guaranteed freedom of religious belief and practice under Article 25 and autonomy of religious institutions under Article 26. The discussion of Employment Division v. Smith in Winnifred Sullivan’s post and subsequent comments reminded me of the very substantial jurisprudence surrounding Article 26.
Religious freedom and religious establishment have come to mean many things to many people. This is, in part, because of the shifting contours of the definition of religion itself (as has been pointed out by others in this series, including Winnifred Fallers Sullivan and Elizabeth Shakman Hurd). But it is also because the nature of freedom is contested ground. The shifting nature of these two concepts makes normative assessment—religious freedom is good, religious freedom is bad—extremely difficult to carry out in any meaningful way. Further, when people advocate for or against religious freedom they are often talking about very different things. Similarly, the measurement of establishment is equally nebulous.
As Elizabeth Shakman Hurd’s and Saba Mahmood’s earlier contributions to this discussion remind us, the received wisdom in Western policy circles today emphasizes the necessary synergy between democracy and religious freedom. What I wish to suggest in my remarks here is not that this characterization is wrong, but that it is sociologically too simple, and that the oversimplification can result in ill-conceived prescriptions for pluralist religious freedom.
The place of religion in the political order is arguably the most contentious issue in post-Mubarak Egypt. With Islamist-oriented parties controlling over 70 percent of seats in the new People’s Assembly and the constitution-writing process about to begin, liberals and leftists are apprehensive about the implications for Egyptian law and society, including the rights of Egypt’s millions of Coptic Christians.