Consider, first, the positioning of religion (or her once-young grandmother, Theology) in that primary architectonics of modern knowledge: the frontispiece to Denis Diderot and Jean le Rond d’Alembert’s Encyclopédie.

In a “temple” or “sanctuary” of truth, a host of clever girls clutch a range of instruments and accessories from compasses, set squares, cacti, and microscopes to harps, masks, and puppets. At the top, where all the action takes place, Truth (at the apex) is being attended by crowned Reason and, below her is Philosophy (just below and to theright). Reason is lifting, and Philosophy is arranging, Truth’s diaphanous veil. Awkwardly positioned between the two is Theology. In the words of Diderot’s commentary: “A ses pieds la Théologie agenouillée reçoit sa lumière d’en-haut.” (At her [Truth’s] feet, Theology kneels and receives her [Theology’s] light from above.) The phrase “her light” is pointed. Diplomatically (or tongue-in-cheek) the image at least allows for the possibility that Mademoiselle Théologie’s light converges with, or is at least part of, the general radiance of Truth that, as Diderot says, “disperses the clouds.” Miss Theology is at a tangent and potentially independent from all that is going on around her. There’s a strong possibility that she might dash out of the temple of truth at any moment should she be led to do so by her light.

This is a scene of obfuscation and diplomacy. It is a tableau of the awkward accommodation of religion and an emblem of Modernity’s wager, or double-think, about religion. There is a founding non-synchronicity between Reason and Theology or belief. Theology’s placement is deliberately obfuscated. She is close to the throne of Truth—but also strategically below it. Truth looks at her, as if looking to her or, at the very least, taking her into consideration. Maybe Truth is a consummate politician, making Theology feel important and wanted, if not entirely believed.

At the same time Philosophy, Truth’s deputy or civil servant has an anxious eye and maybe a restraining hand on Theology, as if keeping her under surveillance, as if Philosophy were a prototype of the FBI or MI5. I am reminded of Kant’s image of Philosophy, as “police[man] in the realm of the sciences [die Polizei im Reiche der Wissenschaften].” As a tolerated heteronomy, an awkward surplus to the system, Theology seems to require surveillance more than her sisters. Theology plays no part in the unveiling of Truth, nor does she consult or even acknowledge her sisters. She seems to think it sufficient to “lend an ear to the oracle within oneself [nur das Orakel in sich selbst anhören].” We don’t know if she is going to continue in these private devotions which seem to make her oblivious to everything going on around her. With one hand she clutches her precious biblia: a potentially loose canon. The explicit state-sponsored labor of Theology and Biblical Studies in the modern university will be to discipline this biblia with Wissenschaft—and cajole her light closer to the universally shared light. This is not just a matter of epistemology, but politics. It is a way of bringing potentially diffuse voices of god into a centralized “voice of [the Christian] God,” approximately and vaguely onboard with the structures of the modern state.

But there is no need to get too scared, or alarmist. Miss Theology looks peaceful and passive enough. She is not wearing a burka or carrying a knife. Though antique, she is not atavistic. She is no more retro than her sisters. She is suitably Abendländisch: embodying the foundations of Europe as simultaneously Christian and classical—hence relatively safe. In other words, she is still Theology, not Religion, and not Religions—that more expansive category that includes the darker apparitions of “religion[s]” plural. These will become more “natural” repositories of fanaticism, intolerance, and danger—so saving Christianity by contrast. This tableau of nascent secularism precedes, or brackets out, Gil Anidjar’s important story of how “Christianity invented the distinction between religious and secular” and “made religion,” thereby “making religion the problem—rather than itself.” In Western taxonomies of religion, the other religions (and certain religions in particular) took on the danger that Christianity never internalized, that it coined the “secular”-“religious” distinction to avoid. As Anidjar deftly puts it, the invention of religions and the secular became one of the essential means by which Christianity “failed to criticize itself,” the means by which it “forgot and forgave itself.”

And yet, at the moment when Theology has not yet expanded into those religions which will become repositories and dumping-grounds for danger, we can see very clearly the structural volatility of homegrown Theology’s position. We have no idea what is being transmitted to her through supernatural media, transmitting on an unknown frequency. She incarnates the unknown and the unknowable: no longer the gods, but her belief. Modernity is the time when the mystery goes inside—to the inner sanctum, the core of the person. It is the time when the holy is privatized as “her belief.” If “belief” is the leftover space to describe that which is not of Truth or Reason or Philosophy, then it is potentially ubiquitous—and rampant. Outside the ritualized, determined, self-estranging gestures of Philosophy, all is belief. But then—as if sensing the danger—belief is penned inside the category Theology (or Religion). In the neat segregations of modernity, Theology (and her grand-daughters, the religions) become the special foci and repository for the maverick force of belief.

And in law, belief must be treated as holy—even as we have no way of knowing, or policing, the objects and investments of this chimerical force that we call belief and that we unleash as, by definition, free. All that we can ask—nay, demand, and demand very anxiously—is that Theology will continue to believe it to be possible, and desirable, to perform a double-genuflection to her own light and the general light of the temple of truth; that is, that she will believe submission to her gods to be (loosely) equivalent to submission to parliament and the courts.

This is the hope—the very insistent hope—that contemporary legislation in England and Wales places on that chimera that it calls “religion or belief,” while at the same time instituting a legalized heteronomy, and underwriting the notion of belief as a volatile and always potentially radical force.

In the Employment Equality (Religion or Belief) Regulations of 2003 which were made part of UK employment law in the Equality Act of 2010, belief (now awkwardly secularized) is subjected to the following five criteria:

—The belief must be genuinely held.

—It must be a belief and not an opinion or view based on the present state of information available.

—It must be a belief as to a weighty and substantial aspect of human life.

—It must attain a certain level of cogency, seriousness, cohesion and importance.

—It must be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

The legislation reads as a strangely updated version of the question of the jailer at Phillipi to Paul and Silas (Acts 16:30). In line with the equation of religion and identity or, in British legal terms, a “protected characteristic,” the question is no longer “What must I do to be saved?” or even “What must I do to ‘believe’?”, but rather “What must I do to be publicly recognized ‘to believe’?”

The doubled term “religion or belief” is an attempt to extend the prerogatives of religion in a properly “secularized” democracy. Like that other legal odd-couple “religion and/or philosophy,” “religion or belief” attempts to create legal room for non-religious beliefs (or philosophies). But secularization is uneven, to say the least. Religion remains the primary reference point for, and guardian of, the category of belief. And this can only ever be parsimoniously shared—lest we all become believers and all start suing on grounds of discrimination against our “belief.”

Breaking with disciplinary decorums, and refusing the limits of a purely legal commentary, we can attempt to elucidate the strangeness of “belief.” It defies the laws of physics—which is hardly surprising given that belief was a concept birthed as the other of science and its handmaids, Reason and Philosophy (in the other sense of “philosophy”). In contemporary legislation, belief, by definition, is that which has broken free from the safeguards of the empirical and material. This explains why it breaks the laws of physics—why it can be something absolutely volatile, and absolutely heavy, at one and the same time.

Looking at the first four criteria, we learn that belief is weighty. Belief is substantial. Belief is serious. Belief is heavy. But belief floats. It floats above knowledge or information or the verifiable. If it did not, it would not qualify as belief. In its detachment from, or disdain for, knowledge or the verifiable, belief is like an “opinion.” But it is much heavier, weightier, and denser than an opinion. It has a different mass index to an opinion. An opinion implies diffidence, negotiation. The word itself implies that the thought knows that it could well be otherwise. Belief is distinguished from opinion by the depth to which it goes within the individual. Religion is the guardian of depth, as it is the guardian of belief. We habitually talk of a “deeply held” belief or conviction. In an inbuilt deference to religion among the most ardent secularizers, Richard Dawkins and Christopher Hitchens regularly use the phrase “deeply held convictions” or “deeply held belief[s].”

It is not difficult to spot the old Kantian distinctions between believing (glauben), opining (meinen), and knowing (wissen). Religious belief is defined as a process of “holding something to be true” or Fürwahrhalten that is not open to verification. Contemporary legislation relies on a dusty old Kantian script. Belief is a kind of thinking that comes to us as a call, or command. This is why it qualifies as hyperthinking: a thought so strong that it qualifies as an identity category, akin to sexuality or ethnicity, in contemporary British and European law. Belief is conjured as a form of thinking that is entirely spurious and uncontained—but that takes to us as surely as our sexuality or the color of our skin. Belief is a form of thought so strong that it appears that it has chosen us, rather than that we have chosen it.

Belief is a tolerated heteronomy: indeed a heteronomy to be respected and cherished. Heteronomy is enshrined in legislation which admits no other law than constitutional law. No wonder that there continues to be such hysteria about sharia. The threat of sharia crystallizes the institutionalized heteronomy or other law that we have always admitted (without any external provocation) around belief. Massively funded government-led inquiries into “radicalization” neglect to explore how the threat of radicalization is intrinsic to our own conceptualizations of belief.

Belief is a free radical—which by definition can attach itself to anything. The only statements we can make about it with surety are vague ones regarding its volatility and its depth. By definition we cannot secure in advance the objects of belief.

Having unleashed the flighty specter of belief, the fifth criterion (“It must be worthy of respect in a democratic society,” etc.) appears as a hopeful attempt to recapture, or at the very least to manage, the chimera of belief. The first four criteria create and unleash belief as a floating vague force, not answerable to anything. They give belief free reign. Indeed they define belief by this free reign. And then, in a distinctly late modern twist on political theology, they attempt to manage the subject who has become sovereign, in an exceptional relationship to law, by virtue of proven possession of “religion or belief.”

The fifth criterion attempts to squeeze the genie back into the bottle. It attempts to negotiate with the very quality that it has defined as non-negotiable belief. Only if it submits to overriding principles of Würde can belief qualify as belief. One can only hope—or pray—at this point. Clearly the attempt to impose conditions on that which is by definition unconditioned will have limited success. Given the criteria just outlined, it is clear that not all beliefs will agree to submit.

Not surprisingly, the tension between criteria one through four (unleashing belief) and caveat five (imposing conditions on belief), is regularly played out in the courts. In the ongoing battles of our vague, amorphous freedoms, the freedom enshrined in rights and equal rights regularly goes a few rounds with “freedom of belief.” Those beliefs that refuse to aggregate in official and large-sized collectives (the World Class religions, or humanism as the official other) remain outside the compensations of the court. Those that refuse to acknowledge “modern” values are technically outside—though sometimes, and maybe even often, compromises are made (by way of concession to the compulsion of belief). But even those religious beliefs deemed unworthy, on the grounds that they do not sufficiently coincide with Würde, remain entirely inside the court’s absolutely amorphous and unpredictable definition of belief.

Many have since written about this case, including myself. In my work, I’ve detailed how hisba is less a deviation from secularism than an expression of the underlying power that makes secularism possible—including the state’s fundamental right to decide the proper place of religion in social life. Here, however, I focus on something else: how hisba became not only an object of general suspicion, but also a particular modality of suspicion as a result of court litigation and state legislation. This modality of suspicion, exercised by the state, is intimately tied to the defense of religious freedom, and I suspect that it is shared across seemingly very different secular polities. To see this, consider the following passage from the Abu Zayd judgment:

The Court notes that there is a difference between apostasy, which is a material action with its basic elements and conditions….and belief (i`tiqad). Apostasy is necessarily comprised of material acts that have an external being. Such acts must make manifest, in a manner undeniable and without dissent, that one has called God Most High a liar, and the Prophet, peace be upon him, a liar by denying what he has brought to Islam….Belief, however, differs clearly from apostasy. For apostasy is a crime whose basic material elements are presented before a judge to decide whether it exists or not….But belief concerns what is in the interior of a human being’s self, belonging to his domain of secrecy. It is neither a matter of judicial probing, nor of investigation by people, but is to do with the relationship between the human being and his Creator. Apostasy is a breach of the Islamic order, at its highest degree and most valued foundations, through manifest, material actions. In positive law, it comes close to a breach of the order of the state or high treason. Apostasy is investigated by the judge or the mufti. However, the punishment for assaulting religion through [an act of] apostasy does not contradict personal freedom. This is because freedom of belief (`aqida) requires that one be a believer (mu’minan) in his words and acts, and that he possess a sound rationale for his abandonment of belief. But a breach of Islam can only be due to corruption in thought or the lure of material, sexual, or other worldly purposes. To combat this category [of desire] is not considered combat against freedom of belief, but rather the protection of belief from such vain, corrupt passions.

In distinguishing between apostasy as an “outer” material act and belief which occurs in an “interior” forum, the Court defines its jurisdiction over the determination of apostasy and justifies its approach in making that determination. On the basis of this distinction, the Court took only Abu Zayd’s written work into account, without probing into his personal views—his “interior” relationship with his creator. Taking statements from his written work at face-value, the Court compared them with statements designated within the sharia as indicating apostasy; finding them to be similar, it pronounced him an apostate.

Many commentators on the judgment have discussed how it separates private belief from public act/expression. No one, however, has discussed the seeming contradiction it presents just a few lines later, where it reconnects private belief and its public manifestation in the context of a defense of religious freedom. Importantly, the Court does not see religious freedom as simply a right to believe what one wants. It also includes maintaining the conditions under which religious belief can be sustained and cultivated. For the Court, this entails that belief be protected from the motives of worldly power that might corrupt it. This, in turn, requires the Court to pronounce what those motives are—as it did with Abu Zayd. Acts and expressions of belief are therefore objects of especial suspicion, to be put under particular scrutiny, for potentially harboring ulterior, corrupting motives. Such scrutiny might be seen as a kind of vigilance against power and its potential abuse. (Indeed, part of the Court’s concern was that Abu Zayd was also teaching his books to university students.) In other words, outer act and inner belief, though initially divided, come to be reconnected through a suspicion of motives of material interest or worldly power. In the context of the freedom of religious belief, it becomes imperative to determine whether acts or expressions of belief are genuinely religiously motivated. This presumes the power to pronounce upon and, if necessary, probe into the character of one’s private convictions. Here the defense of religious freedom promotes a distinctive form of suspicion.

This suspicion is not exclusive to Egypt. Strikingly similar versions of it are found in seemingly very different secular states.

For example, Winnifred Sullivan has highlighted two central criteria in U.S. jurisprudence on religious freedom. They parallel those of the Abu Zayd case. The first criterion was whether religious acts or expressions were sincerely held to be essential to one’s religion. This conflicted with the second, often prevailing, criterion: whether these acts and expressions were authorized and mandated by orthodox religious texts. In U.S. courts, there seemed to be a disposition to presume the sincerity of litigants’ religious belief—which may be due in part to a traditional American respect for individual belief rooted in a particular Protestant history. Nevertheless, as legal theorist Kent Greenawalt writes, “when the state offers exemptions based on people’s convictions, it cannot avoid all inquiry into sincerity.” The Court thus retains the prerogative to determine and investigate this sincerity in the context of defining and defending religious freedoms—a prerogative it has exercised. More, this determination and investigation purveys a suspicion of motives of material interests or other worldly purposes. To quote Greenawalt again:

Another category of religious claims that should not count as spiritual are schemes cloaked in religious language in which the incentive to participate is financial self-interest and not spiritual development. … A finding that a claimant is sincere should be easy if one cannot discern any secular advantage from a person’s engaging in the behavior she asserts is part of her religious exercise.

But whether it is preferable for the Court to actually investigate sincerity or simply make presumptions about it without an investigation has been historically difficult to decide.

A similar situation is found in France. Anthropologist Mayanthi Fernando describes the dilemma veiled Muslim women faced in opposing the banning of the veil in public schools. If, on the one hand, the veil was deemed an obligation mandated by religious authorities, then it could be construed as potentially coercive and an impingement of religious freedom. The French state was therefore very concerned to ascertain that there was no external coercion or pressure to wear the veil—a concern that entailed knowing about the circumstances of people’s private lives and convictions. But if, on the other hand, the veil was construed as a matter of personal belief—a choice—then it was not mandated by orthodox religious texts and therefore inessential to the practice of one’s religion. Banning it was therefore not necessarily an impingement on religious freedom.

But even as a personal belief and choice, the veil was still construed by the state as an essentially religious, and fundamentally Islamic, sign. For state officials, it indicated a will and a desire to manifest Islam. Some saw it as potentially indexing a rising Islamism, one that degraded women in ways incompatible with the French republic’s fundamental values. It was thus a will and a desire that the state sought not to encourage, lest those values become undermined. Thus, in his analysis of the state’s investigation, Talal Asad notes that,

…not only [do] government officials decide what sartorial signs mean, but …they do so by privileged access to the wearer’s motives and will—to her subjectivity—and this is facilitated by resort to a certain kind of semiotics. A governmental commission of inquiry claims to bring private concerns, commitments and sentiments to the public sphere in order to assess their validity for the secular Republic, but it does much more than that. It constitutes meanings by drawing on internal (psychological) signs or external (social) signs, encourages certain desires and emotions at the expense of others.

So even though the veil was construed as a choice, indeed, precisely because it was, it could be deemed a suspicious and potentially dangerous act.

That the determination of genuine religiosity in terms of ulterior motives is a practice of suspicion becomes fully evident when it comes to Muslims in Europe and the U.S., with the near paranoid quality of the public debates about the building of mosques and minarets, the potential usage of sharia law, the teaching of Arabic in public schools, the donating to Muslim charities, and the wearing of veils. While there are complicated historical and political reasons for this near paranoia, my point here is to emphasize a central element of the structure it takes. And this is the constant attempt to unmask ulterior motives of material interest and worldly power behind a range of otherwise ordinary (in this case, Muslim) practices and expressions of belief, in order to defend those freedoms, including especially religious freedom, that are seen as constitutive of the ways of life the state is supposed to guarantee.

These examples, then, reveal a distinctive structure of legalized suspicion. On the one hand, private belief and public act/expression are made separate, but on the other, they are brought together in order to define and defend religious freedoms. In this case, private belief becomes framed within a complex of motives, will and desire—one that becomes suspect to the extent it expresses material interests or drives towards worldly power. As such, it can become subject to investigation and disciplining, which means probing into the details of private life and conviction. This structure of suspicion, shared by the U.S., France and Egypt, brings together under the pretext of religious freedom two central aspects of liberalism and secularism respectively. The first is a distinctively liberal vigilance against power and its abuse, and the second is a characteristically secular desire to draw a line between religion and material power. What this suggests is that, under a liberal secular legal regime, suspicion of religion is the flip-side of the freedom of religious belief.

The Abu Zayd judgment cited above poignantly highlights this contradictory structure of suspicion. At one level, the Court took Abu Zayd’s written statements at face-value—to say what they mean—and found them to contradict orthodox doctrines literally construed. The Court thus declared him an apostate. But when it came to religious freedom, his words were paid extra attention, meaning more than what they said, as having ulterior worldly motives against which the freedom of belief—to cultivate belief and have it flourish—had to be defended. In this case, the Court simply presumed and pronounced upon Abu Zayd’s motives, without investigation. This shows that the suspicious attribution of motives does not depend on an investigation, even though it enables one to be done at the discretion of the judiciary.

Hisba, through and under the law, has come to embody this structure of suspicion and the discretionary power that comes with it. It therefore enables the assertion of the sovereign power of decision into the intimate domains of everyday life. This becomes clear when we remember that hisba was placed in the hands of the General Prosecutor, with his ambiguous status between judiciary and executive power and his nearly unfettered investigative authority. For now it is the General Prosecutor who is responsible for bringing a hisba case to court. He must therefore conduct an investigation to decide whether a potential case merits further litigation. That means he might have to scrutinize the motives behind statements of religious belief. If, however, such scrutiny seems to intrude too much into a person’s private life or interior forum, the General Prosecutor has another option at his discretion: to take these statements at face-value, as saying what they mean, as the Court did with Abu Zayd. A focus on literal statements, however, may fail to capture the complexity of people’s private religious lives. As with the U.S. and France above, it is unclear here which is preferable: to investigate how genuine one’s religious motives are, or to make presumptions about how genuine they really are.

This tension between intruding into a private, ostensibly protected, domain or taking statements too literally is reminiscent of another tension upon which modern legal legitimacy both rests and continually founders: between the enactment and the appearance of justice. The more zealously an official investigates, the more abusive of justice he might seem to be. If, however, he relies strictly on procedure, this might make a mockery of justice. Hisba now partakes of this dilemma too.

To conclude: I cited the Abu Zayd judgments to show how hisba, in its contemporary legalized form, embodied a distinctive structure of suspicion. Through the judgments, hisba potentially undermined an entire domain of private rights. In restricting hisba’s uses, the state transformed it into a modality of suspicion only it could exercise. This modality of suspicion, enabled to defend religious freedoms, nevertheless undermined the crucial distinctions on which they relied. More, it became ensconced within another dynamic of suspicion, the tension between the enactment and the appearance of justice. This tension is even further compounded because, as I show elsewhere, it remains irresolvably indeterminate whether hisba is still an Islamic and thus primarily religious principle, or, as an expression of public order, it has become an essentially secular principle. The example of hisba therefore not only confirms Winnifred Sullivan’s thesis that religious freedom as a legally enforceable right is impossible to attain. It also shows how such religious freedom will never appear to be fully achieved, being entangled in its entirety within the dynamics of law’s suspicion and secular/religious ambiguity.

We should not, however, take the impossibility of religious freedom to mean the failure of secularism. For that would reduce an analysis of secularism to an assessment of whether it fulfills the promises it makes. Secularism as a historical phenomenon is certainly more than its promises, if only because it so consistently and demonstrably falls short of them. We might consider instead how this sense of a continual failure is built into the historical grammar of secularism, and its consequences. In this case, the constant disjuncture between religious freedom as a secular aspiration and the secular means of achieving it constitutes a space of a continual striving, one which works to expand and entrench the suspicion and potential for intervention that provoked it in the first place. Within this space, religion is given to continual politicization, political theological claims acquire plausibility and force, and critique becomes a seemingly indispensable capacity that one must sustain and tirelessly cultivate. As a result, the question of religious freedom, as a central secular stake, remains poignantly alive, drawn into a seemingly unavoidable and incessant cycle of provocation, critique, and intervention. That is, the modalities and dynamics of suspicion outlined here help sustain the problem-space of secularism, its constitutive questions and stakes, the critical dispositions it induces, and the propensities toward sovereignty it displays. We remain bound to this problem-space through the incessant suspicion it provokes.

I begin with this observation about our contemporary moment’s deep commitment to the child as an essential identity position. I note that this commitment exists despite the dramatic, really unprecedented, variability in those individuals who are categorized as children—and despite the way that aging is always already inflecting, transforming, and finally eroding the child such that someone can never be a child in the way that they can be male or female, black or white. I do so because the corpus of material related to sex abuse and the Catholic Church uniformly relies on this cultural commitment to the child. Cardinal Bernard Francis Law apologizes for his failure to see that the protection of children must be the church’s single focus and top priority, and his admission that he has only recently come to understand this fact—to see that the child’s need for protection trumps the church’s need to avoid scandal—points to the extent of the problem and of the church’s perceived gross negligence. Therefore despite the church’s historical emphasis on the child as a privileged vehicle of faith (in other words, having the faith of a child) and the significant place that childhood sexual innocence has in Catholic tradition (immaculate conception, for example), real children, as the documents compiled by BishopAccountability.org tell us time and again, bear the violent brunt of the lived distance between Catholic theory and practice—between the mandate that priests remain celibate and the stark reality of sexual need.

It is therefore specifically the sexual abuse of children that is the thrust of current social critique and moral outrage directed against the Catholic Church—a moral outrage so intense as to even motivate recent efforts to bring charges against the Vatican for crimes against humanity. While I do not want to minimize the magnitude of these crimes, I would, for a moment, like to bracket single-focused attention on them in order to add a few salient observations that might help us make sense not so much of the events but of what can appear in some of these documents to be an outraged and increasingly shrill response to them. I do so in the spirit of one trained as a literary and cultural theorist not as a religious studies scholar, and it would be my hope that the questions someone with my training might ask would shed productive light on the issues, precisely because of my discipline’s critical distance from the core fracture lines and questions that have tended to shape popular debate.

First, it is useful to remind ourselves of something that we all know—that the child has long been the privileged occasion and overwrought site for scientific, social, and personal narratives of sexual development and deterioration. We need look no further than psychoanalytic theory itself to be reminded of the child’s longstanding and foundational importance to our contemporary understanding of sexuality and to the burgeoning fields of sexuality studies. From Havelock Ellis and Sigmund Freud, to recent queer theorists and cultural studies scholars like James Kincaid, Lee Edelman, and Chris Nealon, the child has long been the point of origin from which to think and rethink narratives of individual sexual identity and development. The child is the scaffolding on which we tend to build our stories of sexual identity, replete with its minor chords of transgression and regression, as well as progression. In The Erotic Child and Victorian Culture, Kincaid explores the social implications of this tendency to infuse the child with sexual content and meaning. The practice he terms “child-loving” has, from the nineteenth century forward, carried a latent erotic dimension for adults in ways that both belie and inform the heavy, overwrought artifice of innocence that we have constructed supposedly to protect children from the contaminating forces of the adult world.

It is provocative, of course, to insist that our love for children is not always nonsexual in nature and motive, that there is a continuum rather than a binary opposition between sex abuse and platonic child love. On the one hand, psychoanalytic theory encourages us to turn to the child to find traces and to see the origins of a ubiquitous, inchoate sexuality of which we attempt to make sense throughout our lives; on the other hand, we insist that children are sexually innocent and hermetically sealed from these very enduring, at times chaotic, sexual forces. Even as we commit to the idea that the child is innocent, sexually passionless, and in need of protection, we increasingly weigh this child down with fraught sexual meanings and content.

The large-scale social, cultural, and political implications of this fact are fleshed out nowhere more provocatively than in the work of Ian Hacking. His foundational 1991 essay “The Making and Molding of Child Abuse” summarizes the current situation in which we find ourselves as follows:

Some evil actions are public. Others are private. Child abuse is the worst of private evils. We know we want to put a stop to it. We know we can’t, but we must protect as many children as we can, and help those who have been hurt. Anyone who feels differently is already something of a monster.

And yet, even as we believe that child abuse means something definite, the behaviors that fall under the rubric of child abuse have changed dramatically over the last hundred years, such that many of the things that we currently identify as abusive were standard practice in the recent past. In other words, we’ve unwittingly and gradually been changing the very definitions of abuse and revising our moral codes accordingly.

The reason I bring Hacking up in detail here is that he reminds us of an important aspect of our urgent and visceral impulse to protect children from abusive behavior, in this case, from the abuse of priests and the church they call home. We can see that this impulse, powerful as it is, is itself indicative of our particular historical moment, and socially constructed to effect particular social transformations at the current time. It isn’t that the abuse that the children suffered in the various Catholic dioceses is warranted or acceptable or that we should overlook or minimize it as church authorities have tended to do. But how we respond to and understand these events—the outrage we feel and the emotions we let loose—are inevitably part of larger social and political processes of which we need to be aware. And, whether or not we would agree with Hacking’s conclusion that the historically unprecedented number of behaviors that now ‘count’ as child abuse are part and parcel of a larger reallocation of social responsibility from the state onto the individual (in this case the abusive adult priest and an institution that stands in uneasy relation to the state), his assertion that child abuse is one avenue through which the state negotiates and reallocates social responsibility is useful for thinking about how the child that is the centerpiece of these cases of church abuse might be operating, in this case, in the larger push and pull between church and state.

As the documents compiled at BishopAccountability.org make clear, children are the rope in the ongoing tug of war between church and state. The conflict would have an inherently different feel if the sexual abuse of power were between adults. Popular antebellum narratives in the form of the escaped nun’s memoir (I think here of Maria Monk’s Awful Disclosures or Rebecca Reed’s Six Months in a Convent) claimed to document women’s sexual abuse within convent walls. However subsequently disproven they were, these accounts were so effective as to result in riots—in angry mobs, for example, literally burning down the Ursuline convent that Reed wrote about. At the particular time in which Monk, Reed, and others told their sensationalized stories of sexual abuse at the hands of nefarious priests, the public felt great dis-ease with the pressures that the influx of new Catholic immigrants were exerting on civic resources. Outraged readers who stormed convents looking for proof of nuns’ sexual abuse at the hands of corrupt priests were animated by a desire to regulate and bring under public control what was going on within the privacy of the convent or confessional, in an effort to manage and control a perceived threat to the sanctity and very durability of the state.

If these accounts of women’s sexual abuse at the hands of priests were the subject of violent social outrage in the nineteenth century, children seem to be functioning narratively in a similar way in the late twentieth and early twenty-first centuries. In addition to their truth value and the accuracy of their content, these contemporary accounts of sexual abuse of power have a secondary and collateral effect of vilifying a church that stands in uneasy relation to the hegemony of the nation-state. By contextualizing the current narratives within a longer history of popular depictions of the Vatican’s complicity in priests’ abuses of power, we can begin to see how these contemporary allegations and abuses of power might inadvertently work to further a state agenda of bringing Catholic church practices and those individuals who implement church authority under state control, surveillance, and regulation.

This effort to exert state authority over church life—and church resistance to the encroaching state control—shapes the very language that both constituencies use to narrate recent history. When victims say that they don’t accuse abusive priests of sin, but rather of crime, they are drawing a crucial distinction between spheres of influence to insist that priests, like all citizens, are subject to state authority. Conversely, when Bishop Thomas Daily says he is not a policeman but a shepherd, he is insisting on the church’s distance from such authority. And when the 2002 grand jury report on the Rockville Centre describes the abusers as “predatory, serial, child molesters working as priests” rather than “priests troubled with the human frailty and sinfulness in need of succor and protection,” they are insisting that state definitions and the law that upholds them precede and preempt the logic of the church.

Children’s significance to this negotiation and struggle for control extends beyond their role as victim of abuse, and the child—as metaphor, imaginative construct, and developmental stage of life—is a powerful referent that molds how those on all sides of the conflict conceptualize, describe, and understand the current situation. Church leaders often narrate the course of events surrounding their response to abuse reports in ways that associate themselves with childlike qualities—as ingénues who didn’t have the knowledge, the experience, or the wisdom that they needed in order to contend with issues of such magnitude. If these leaders self-describe as being developmentally immature, inexperienced, and innocent at the time the abuse surfaced, offending priests are often described as being like the children they abuse. John Geoghan, for example, is described by the rector of St John’s Seminary in 1954 as having “a very pronounced immaturity,” with psychological testing showing an “immature and impulsive nature.” The Grand Jury Report of the Rockville Centre includes a facility report that observes that Priest C “was still attracted to adolescents and indeed strongly considered himself to be one.” Even congregants who welcome priests into their homes explain their misplaced trust by describing the priest as being like one of their children. Perpetrator as well as victim reach for the cultural category of the child in order to explain and mitigate their culpability and to lay claim to the position of innocent victim rather than pernicious perpetrator.

And so it is not simply that children were systematically abused under church authority, but that the idea of the child as a vulnerable subject in need of special protection and succor has seeped into every aspect of the narratives we are generating around these events. In other words, the child’s privileged status as a person in need of special protections and advocacy is being utilized by every constituency at the table—from the adult priests’ and bishops’ claims that they are child-like to adult victims’ ongoing self-identification as children—and is the unacknowledged driver in the tense struggle over authority that is ensuing between church and state. A scan of the powerful materials compiled by BishopAccountability.org reveals how much of the current debate about sex abuse and the Catholic Church depends on a sharp opposition between child and adult. Not only do victims and their families emphasize victims’ minority (even when victims exceed the child’s legal age limit) but priests repeatedly liken themselves to children, as part of an effort to self-understand as victim rather than perpetrator. It is this dimension of the debate—so often unrecognized—that gives accusations and refutations of abuse such emotional force and power.

As you can see, the questions that literary and cultural studies might productively bring to the child abuse and study of religion analytic field are ones concerned with relations between individuals, institutions, and the state and the way that the complex meaning-making that the child occasions as an identity category is integral to that process. Further, focus on the child as a powerfully constituting dimension of this analytic field helps to tease out the delicate dance in which church and state are both involved about authority, privacy, financial resources, and ultimately the legislation of bodies as well as selves. Literary and cultural studies scholars have paid all too little attention to religion in textual analysis. We, and I include myself in this, have tended to conceptualize the child’s significance to cultural formations in secular terms—to see the child as a complex identity category interfacing with a state pried loose from spiritual concerns. The intellectual challenge that this archive offers is one that asks us to revisit this assumption and to see the child as embedded in the crosshairs of spiritual, sexual, and secular concerns. Doing so offers us the possibility of seeing the full implications of our current abiding commitment to the child as our last essential identity category. It also offers us the possibility of seeing the way that church as well as state turn to this last bastion of pre-postmodern humanism in efforts to shore up their constituencies. And, finally, it offers us the opportunity to perceive how the child for whom we urgently advocate operates in the struggle for authority, power, market share, and resources between the two.

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.

Sexual abuse of children is far from new. Historians of the family have discovered that adults in elite households in fifteenth- and sixteenth-century Europe sometimes treated young children as sexual playthings. A striking example involves the future King of France, Louis XIII. According to a diary kept by the royal physician, members of the French royal court fondled his genitals and ladies in waiting played sexual games with his tiny fists.

But if the sexual abuse of minors is anything but a recent phenomenon, only intermittently has this country focused on the problem. Three conclusions grow out of the historical study of the sexual abuse of minors. The first is how slowly and unevenly American society has come to recognize the simple fact that the sexual abuse of minors is wrong and inflicts lasting trauma. The second is that in attempting to understand the sexual abuse of minors, expert opinion has often shown more understanding for the perpetrators than the victims, overemphasizing victims’ resilience and minimizing the abusers’ responsibility and the corporate cultures and institutional arrangements that facilitate abuse. The third key finding is that bureaucratic institutions that operate outside public scrutiny have dealt consistently with the sexual abuse by denying its reality, ignoring its existence, claiming that it is an anomaly and aberration, castigating accusers, and failing to hold perpetrators to account.

That the young were sexually abused was well known to nineteenth-century Americans. In New York City, between 1790 and 1876, between a third and a half of rape victims were under the age of 19; during the 1820s, the figure was 76 percent. The historian Lynn Sacco found more than 500 published newspaper reports of father-daughter incest between 1817 and 1899. An 1894 textbook, A System of Legal Medicine, reported that the “rape of children is the most frequent form of sexual crime.”

In his landmark study of female sexual behavior, published in 1953, Alfred Kinsey reported that fully a quarter of all girls under the age of 14 reported that they had experienced some form of sexual abuse, including exhibitionism, fondling, or incest (at rates roughly similar to those reported today). Yet when these findings were reported, they evoked virtually no public interest, although Kinsey’s statistics about pre-marital sexual activity and adultery provoked a huge public outcry.

Public attention to the sexual abuse of minors has waxed and waned repeatedly over time. Concern was greatest following the Civil War, during the Progressive era, during and immediately after World War II, and in our own time (see Elizabeth Pleck and Linda Gordon). Public concern does not appear to reflect increases in the incidence of abuse, but rather broader social anxieties, especially over the entry of women into the workforce, and the influence of groups willing to bring a pressing problem to public light. Following the Civil War, the rapid growth of cities, a massive influx of immigrants, and a sharp rise in the divorce rate provoked fears for the future of the family and alarm over the supposed impact of the breakdown of the family upon children. During the Progressive era of the early twentieth century, anxieties over mass immigration, divorce, child labor, and juvenile delinquency helped stimulate public concern over the abuse of children. During World War II, concerns about working mothers, latchkey children, and absent fathers sparked public anxiety. During the 1970s, a sharp increase in divorce, single parenthood, and working mothers contributed to a heightened sensitivity to childhood sexual abuse.

At first, public concern focused on the very young, those ten or younger. But beginning in the late nineteenth century, philanthropists and reformers brought attention to a somewhat older group of those aged eleven to seventeen. Reformers fought to raise the age of consent to sixteen and to enact laws to prevent those younger than sixteen from entering any place that sold intoxicants, pool halls, and dance halls. It comes as a surprise to contemporaries to discover that raising the age of consent required concerted political battles.

In courthouses, the treatment of sexual abuse was colored by a young person’s age, gender, and willingness to conform to cultural stereotypes. For a long time, jurors treated young girls very differently from boys and older girls. Sexual activity with young girls was clearly regarded as pathological by the late nineteenth century, but proving cases of abuse proved very difficult. Jurors expected a young girl to reveal her innocence by using vague, simple, euphemistic language, while expecting older girls to put up resistance or demonstrate immaturity and a lack of sexual understanding. Interestingly, men charged with sodomizing pubescent boys were convicted in the same proportions as those whose victims were young boys, but this was not the case with girls.

At first, the focus was on physical harm to the young person or the ruin to their reputation; nothing was said about the psychological scars caused by abuse until the 1930s. 30 percent of statutory rape cases from 1896 to 1926 sought to resolve the case by marriage or financial payment.

For much of the twentieth century, sexual abuse of children was treated as an anomaly and aberration perpetrated by moral monsters who were increasingly understood in psychological terms: as dirty old men, sexual fiends, perverts, predators, pedophiles, or sexual psychopaths. Evidence—such as venereal infections in children—indicating that sexual abuse of children was not confined to a small number of sex predators was dismissed and blamed on such non-sexual causes as unhygienic toilet seats.

The twentieth century witnessed a number of attempts to understand the sexual abuse of minors. The emergence of theories of young peoples’ psychosexual development and especially the embrace of the Freudian notion of the sexual child had ambiguous consequences for understanding of sexual abuse. Among some experts, there was a tendency to deny that sexual abuse had lasting consequences. But among others, there was a growing sense that abuse, even abuse short of genital penetration, caused long-term psychological damage. It is important to stress the contestation that surrounded the impact of abuse. Race and class colored expert opinion on the sexual abuse of minors. By mid-century, expert opinion tended to regard working-class, and especially black, children as more prematurely sexualized and more endowed with sexual instincts and desire than their middle-class white counterparts. Meanwhile, offenders were regarded mentally ill and treatable through psychotherapy. Their problem, purportedly, was that they lacked emotional and sexual maturity. Within the courts, there was a tendency to substitute prosecution of sexual molestation for prosecution for rape. On the one hand, this meant that adults could be prosecuted for crimes of touching. On the other hand, punishments tended to be less severe than the law suggested. During the 1990s, there was a backlash against the trend toward vigorous prosecution of sexual abuse cases. A panic over allegations of sexual abuse in day care centers, in which over a hundred day care workers were convicted of abuse only to have the prosecution claims overturned in virtually every instance, raised questions about repressed memories, the suggestibility of young witnesses, and issues of consent.

The problem with the “psychologizing” of the sexual abuse of minors was the failure to understand the cultures of sexual abuse—including the clerical culture of the Church—which allow abuse to take place. Sexual abuse flourishes in environments with unequal power relationships. Factors that allow sexual abuse to flourish include isolation and social disconnection, both of the abused and the abuser; emotionally needy and disempowered young people; a self-validating ideology that rationalizes abuse; institutional settings that shield individuals from public scrutiny; and institutions intent on protecting their reputation and safeguarding themselves from liability—and that do so in part by decentralizing decision-making about crucial issues.

Defenders of the church’s handling of the sexual abuse scandals often insist that the church’s problems were no greater than those found in other institutions; that only a tiny proportion of priests were ever accused of abuse; and that the church hierarchy dealt with abuse in line with the received wisdom of the time. These defenders also maintain that the abuse was a historical problem linked to a specific era, which has now past, and that the church was especially vulnerable because it maintained detailed records. There is some truth to each of these claims. Yet none of them in any way mitigate the abuse that took place. The church is held to a higher standard precisely because it has a moral obligation to meet the highest moral standards. Because the Catholic Church recognizes that all human beings are sinful, it should have recognized that even its clerics can sin and that only strict supervision and accountability can minimize it.

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.

Everson v. Board of Education

As Terry Eastland notes in his commentary on these two cases, “most of the religion-clause cases decided by the Supreme Court” in the wake of Cantwell have involved “federal litigation over religion-clause claims against states.” This is in contrast, he observes, to the first 150 years of Supreme Court religion-clause jurisprudence when all of the very few cases heard by the Court “involved claims against the federal government.”

On the one hand, this geographic shift has meant that formalized practices of religious establishment in individual states are henceforth subject to scrutiny and challenge. On the other, the application of the disestablishment principle to the states has also contributed, I’d argue, to the plaints of many Christians that a monolithically secular state is driving religion from public life. What we have is a regionalization of public conflicts over the place of religion and religious people in public life and in the state. This “and” is necessary, for the public is not the state—a confusion that regularly trips up public debates about the meaning and practice of religious freedom in the United States.

Christian dominance in American public life—while a truism—is itself not monolithic in practice. Instead, we might better speak of religious cultures, plural, and of secular negotiations. Particular Christianities are dominant in some states and regions in the U.S. in ways that strain against a larger overlay of mainline Protestantism as the baseline for what both national religious culture and national secular identity have meant historically. I’ll come back to this point.

Although he may seem like too easy of a target, former Senator and, now, former Republican presidential candidate Rick Santorum’s conflation of the state and the public square is illuminating precisely because it is not exceptional. In a notorious February 2012 appearance on “This Week with George Stephanopolous,” Santorum proclaimed his expansive vision of First Amendment free exercise: “I don’t believe in an America where the separation of Church and State is absolute. The idea that the church can have no influence or no involvement in the operation of the state is absolutely antithetical to the objectives and vision of our country. This is the First Amendment. The First Amendment says the free exercise of religion.” Santorum went on to express his visceral disgust at those who would bar religious people from the public square, seamlessly shifting his focus from the state to the public square. Making then presidential candidate John F. Kennedy’s famous 1960 speech to the Greater Houston Ministerial Association stand in as the ur-moment of this enforced bracketing of religion from all of public life, Santorum glossed Kennedy’s speech: “To say that people of faith have no role in the public square? You bet that makes you throw up. What kind of country do we live in that says only people of non-faith can come into the public square and make their case?”

This is, pardon the pun, a rather gross misreading of what Kennedy actually said. But, what interests me here are the following: (1) the way Santorum effortlessly elides the public square with the state and (2) Santorum’s elevation of free exercise over disestablishment as the living pulse of religious freedom. Minimizing—if not outright denying—disestablishment licenses the hyperbole of Santorum’s claim that the state can set no limits on the reach of “the church” into its operations. To be sure, Santorum’s language was very colorful, but his analysis and the ressentiment it bespeaks are broadly shared among evangelical Christians and a growing number of conservative Catholics.

As Janet R. Jakobsen and I stress in our book Love the Sin: Sexual Regulation and the Limits of Religious Tolerance, it matters a great deal to possibilities for agonistic democracy and meaningful religious freedom whether one sees the two components of First Amendment religious freedom—disestablishment and free exercise—as separable or interstructuring. In our view, and we are hardly legal outliers on this question, disestablishment is the structuring condition for free exercise. Otherwise, those who are religiously different or not religious at all may well find their lives not simply less admired and valued than those who belong to the dominant religion; they may find they have diminished legal status.

And yet, in public political debates over the meaning of religious freedom, too often we see the very balkanization replayed by Santorum: proponents of more religion in U.S. public life and in government (and let’s be clear, not just any religion, but of particular Christianities) lean heavily on the free exercise component and underplay disestablishment. Conversely, many secularists—not all secularists, to be sure, but many—stress the absolute separation of Church and State and minimize free exercise.

At least in principle, the appearance of religion in public spaces or the use of religious language and arguments in public debates need not equate to the state’s endorsement of any religion at all nor need it lead to religious dominance. To quote one of my favorite lines from Gilbert and Sullivan’s Utopia Limited; or, the Flowers of Progress: “That’s the theory but in practice, how does it act?” Not so well, as it happens. This is because U.S. public life operates under conditions of Christian dominance. Particular Christian practices and claims can “float,” sometimes being overtly marked as religious, at other times passing as secular, resulting in a situation Jakobsen and I have elsewhere termed “Christian secularism.”

The public itself (as an ideal) and public spaces (in their messy practices) are prepared in advance to credit Christian assumptions and value claims as integral to public life and national character. In such a context, it can be hard for those who are religiously different and those who are not religious at all to get a word in edgewise. In addition, these same Christian assumptions can pass into the state as the secular logic of universal morality and civic order, as we have seen in numerous state laws and referenda about same-sex marriage. I am writing these words a day after North Carolina voters overwhelmingly passed Amendment One, a constitutional amendment banning same-sex marriage.

Although many liberal and progressive secularists had hoped, even expected, that the election of Barack Obama in 2008 heralded the end of religion’s role in public debates and policy decisions, this hope has not been realized. And that’s an understatement, as any quick perusal of the roiling election-year debates over abortion and same-sex marriage show. Again, witness North Carolina. Or the debates over the provisions for contraception coverage in the Affordable Healthcare Act.

On one level, the hope was for an end to the influence of conservative religion—really, conservative Christianities—on policy-making, particularly in issues concerning sexual life. But, it was also, for many secularists, a desire for the elimination of any trace of religion in the U.S. public sphere, as if religion were a toxin from which they needed or even had a fundamental right to be protected. This too shows too measly an understanding of the scope of religious freedom and the parameters of agonistic democratic engagement. Democracy does not always feel good. In everyday life, we bump up against each other and may well be discomforted by differences we cannot assimilate or will not understand. And this is among the reasons we need courts to protect the rights and freedoms of unpopular minorities: so that bumps will not turn into overt violence or formalized exclusions. Encounters with difference, including with moral difference, are not a hostile take-over nor take-away, nor an instance of “indoctrination”—whether of religious values or secular. (Given the entwinement of Christian values with the values of the secular in the United States, the “or” in that previous sentence needs critical pressure as well.)

In using the loaded word “indoctrination,” I am invoking numerous heated debates about higher education and, in particular, the claim that universities are dominated by liberals and indoctrinate their students into secular values—thereby, severing them from their families of origins. Indeed, just such a claim was made by Rick Santorum in the very same interview in which he declared his nauseated response to Church-State separation.

The word “indoctrination” also makes a curious appearance in Everson. At issue in that case were reimbursements approved by the township of Ewing, NJ, and paid out to parents for money they spent busing their children to schools, whether public or Catholic. A local tax-payer challenged the payments to the parents of parochial school students as an unconstitutional establishment of religion. A split court (5-4) held that the use of such public monies did not unconstitutionally establish religion in the state. Fascinatingly, even the four dissenters agreed with the logic of the decision—namely, for a wall of separation between Church and State. The expansive terms of Justice Hugo Black’s conception of disestablishment could easily have been penned by any one of the four dissenters. Here’s Justice Black, writing for the 5-member majority:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.” Reynolds v. United States, supra, 98 U.S. at page 164.

I always discuss the Everson case in my undergraduate class on “Religion, Sexuality, and American Public Life.” I sketch the basic issues in dispute for this case, tell them it was a split decision, and then show them the above passage from the majority decision. In light of this purple passage, I ask them what they think the holding was. Inevitably, they think the Court ruled against public funding for buses to Catholic schools.

Like my students, I share the dissenting justices’ puzzlement that the majority could have put a bus-sized hole in the fabled “wall of separation.” But the larger lesson here, beyond providing my students a quick First Amendment jurisprudence 101, is that the sharing of general principles (here, the “wall of separation”) does not yet tell us anything about how they will be set down in practice. Moreover, the wall described in Justice Robert H. Jackson’s dissent seems to call for refortifying dominant Protestant notions of what secularism should look and feel like in practice. He does so via a stunning comparison-contrast between a Catholic emphasis on education as indoctrination into faith and a—well, what exactly?—Protestant/secular/Protestant-secular emphasis on neutrality and the value of mature adult “choice.” Justice Jackson writes:

It is no exaggeration to say that the whole historic conflict in temporal policy between the Catholic Church and non-Catholics comes to a focus in their respective school policies. The Roman Catholic Church…does not leave the individual to pick up religion by chance. It relies on early and indelible indoctrination in the faith and order of the Church by the word and example of persons consecrated to the task.

Our public school, if not a product of Protestantism, at least is more consistent with it than with the Catholic culture and scheme of values. It is a relatively recent development…organized on…the premise that secular education can be isolated from all religious teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that after the individual has been instructed in worldly wisdom he will be better fitted to choose his religion. Whether such a disjunction is possible, and if possible whether it is wise, are questions I need not try to answer.

The spirit of education conjured in this passage may well reveal its own “romantic yearnings”—to draw on the language of Winnifred Sullivan’s contribution to this forum—for a unified secular culture. However, as the Justice’s toggle between not quite Protestant, but not not-Protestant either suggests (“Our public school, if not a product of Protestantism, at least is more consistent with it…”), this unified secular culture—the fantasy of it, at least—is linked historically and imaginatively to what Robert Orsi has termed a “domesticated Protestantism tolerable within [the secular learning cultures of] the academy” that emerged in the late-nineteenth and early-twentieth centuries.

If this domesticated Protestantism did not need to plead its case in the classroom, this is because its style of personhood and structures of feeling were the very building blocks of secular public education—Protestant building blocks mistaken for walls of separation. Increasing religious diversity in the United States, including diversity among Protestants, has called many of Justice Jackson’s operative assumptions into question. I suspect that the justices in the majority in Everson did not quite anticipate the wild contemporary landscape of American religious pluralism either.

But there are also important connections to Sullivan’s discussion of “The world Smith made.” If religious authorities now find themselves in the ironic position of appealing to the secular state to enforce sectarian orthodoxies, one of the ongoing and crucial laboratories for this contest between discipline and dissensus will be public school classrooms. The mission—a term I choose with great deliberation—Justice Jackson attributed to the secular public classroom is not and never was innocent of religious domination. Those of us concerned about attacks on public education—from budget cuts to the right wing’s politicization of curriculum—would do well to remember and mark the specific histories of domination on which we stand our ground in the name of First Amendment freedoms of religion and of speech.

The Sri Lankan Government has to fulfill its positive obligations under the right to freedom of religion…The right to freedom of religion or belief is a universal right enjoyed by all human beings and therefore by members of all religious communities, whether old or new and whether they have been established in a country for a long time or recently.

In her conclusions, the Special Rapporteur invoked a particular vision of religious freedom that has become dominant among human rights agencies, NGOs, foreign governments, and academics. According to this vision, religious freedom names an ideal social condition that may be reliably reproduced in differing national contexts through the elaboration and enforcement of particular regimes of legal rights—rights which, if properly administered, will protect minority religious communities against majoritarian politics and harmonize diverse religious interests. This vision—which can be seen with particular clarity in documents such as the US International Religious Freedom Act—treats religious rights as apolitical instruments and as legal standards that stand outside of struggles for power and the narrow interests of particular groups. In this vision, religious rights appear as the morals of historical stories, embodying the transcendence or settlement of social discord: they emerge after the Thirty Years’ War, after the American Revolution, after World War II.

However, 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.

To see this, one has to begin at the end: to begin with the text of religious freedom provisions and work back. To do so is to treat religious rights not as the solution to the problem of religious strife of persecution, but as a problem itself, or at least as an object to be explained: Why this rendering of rights and not another? Why religious rights at all? Why now?

I explore these questions through a brief illustration from my research on religion and law in twentieth-century Sri Lanka, or, as it was known during the period in question, Ceylon. The “freedom of religion” paragraph in the 1943 “Constitution for a Free Lanka” is similar to provisions for religious freedom contained in other human rights instruments. It reads:

Freedom of conscience and free profession and practice of religion, subject to public order and morality, are hereby guaranteed to every citizen. The [Free Lanka] Republic shall not prohibit the free exercise of any religion or give preference or impose any disability on account of religion, belief or status.

The paragraph was included originally as one of eight discrete paragraphs of “Fundamental Rights” compiled into a “Fundamental Rights Chapter.” Today this paragraph seems unremarkable, even vaguely familiar, a somewhat bland collection of legal guarantees similar to those found in other transnational religious freedom instruments. Yet, in 1943 Ceylon the paragraph was considered not ordinary, but controversial—a carefully crafted protest against empire.

The “Free Lanka” Constitution was a draft independence constitution prepared by a group of Ceylonese politicians who hoped that it might serve as a legal charter under which the British Crown would transfer powers of self-government to a local Ceylonese parliament. Unlike other drafts prepared at the time, it was not produced in consultation with British officials. It was the work of a cohort of young nationalists who rejected the idea that an outgoing British government should “give” to Ceylon the legal charter that announced its independence.

The inclusion of a section on fundamental rights indexed the drafters’ anti-colonialist nationalism. In the 1940s, fundamental rights were taboo for Crown constitution-makers. British legal advisors who participated in the drafting of independence constitutions followed a Colonial Office policy regarding “bills of rights”: they were not to be included. As one influential British constitution-maker of the period put it, “[A]n English lawyer is apt to shy away from [Fundamental Rights] like a horse from a ghost.” Officially, British legalists opposed justiciable bills of rights because they were not part of modern English law and because such rights might undercut parliamentary sovereignty by requiring that future legislators adhere to the political values of the present. Unofficially, the British recognized an inconvenient friction between “bills of rights” and the colonial project as a whole: if the Crown were to acknowledge and entrench fundamental rights as absolute and binding on governments, it would risk exposing the illegitimacy of colonialism more generally, insofar as colonial governments acted without consideration of such rights.

The drafters of the Sri Lankan religious freedom provision recognized this and framed religious freedom as a fundamental right, in part, to amplify its anti-colonialist tenor. In speeches, newspaper articles, and letters to overseas’ organizations such as the Indian National Congress, the drafters directly linked the push for fundamental constitutional rights with the campaign for independence from British rule. These advocates claimed that the British, as participants in the newly-formed allied “United Nations,” were bound by the “human rights” expressed in the “Declaration by the United Nations.” In a manifesto drafted slightly later, the drafters of the Sri Lankan religious freedom provision even outlined a program of “five freedoms” for Ceylon—deliberately echoing Roosevelt’s famous fourfold formulation—of which the first was “The Freedom from Foreign Rule.”

By articulating religious freedom through the idiom of fundamental rights, drafters gestured towards sources of legitimacy that were broader than (if not directly dominant over) the British Crown. They plotted religious rights, and their constitution as a whole, within a legal-philosophical terrain that treated rights not as benevolences extended by rulers, but as guarantees that conditioned the legitimacy of rule itself: governments did not authenticate rights; rights authenticated governments. This alternative approach to the legitimacy and the origin of rights had radical implications. On the one hand, drafters were able to (and did) criticize the colonial government’s legitimacy by accusing it of failing to grant adequate fundamental rights to those who lived in Ceylon. On the other hand, they simultaneously claimed as a fundamental right, “the right to independence and a free constitution.”

The inclusion of religious rights as fundamental rights also targeted a more immediate, local audience. The paragraph on religious freedom was designed in opposition to another paragraph on religious freedom—one framed under the guidance of Ivor Jennings, one of Britain’s leading constitutional scholars at the time and the author of the derisive assessment of fundamental rights quoted above. In a separate constitutional draft, Jennings had proposed to ensure religious freedom by placing certain minimal limits on the lawmaking powers of parliament. In his version, religious freedom was to be secured by preventing lawmakers from enacting bills that would confer advantages or disadvantages on particular religious communities, impinge upon the “free exercise” of religion, or “alter the constitution of any religious body.” When compared with Jennings’ formula, it wasn’t only the inclusion of “fundamental” religious rights that distinguished the nationalists’ draft, it was the nature of the rights chosen. Whereas Jennings rendered religious freedom through a series of negative legislative prohibitions, the nationalists framed religious freedom in terms of positive as well as negative liberties, prescribing not only limits on government’s powers, but guarantees of state protection for religious lives—limits and guarantees that applied not only to legislatures, but to all agents and actions of the Republic.

The politics of rights-writing extend even further. Jennings modeled his religious freedom paragraph on provisions contained in the Ireland Act of 1920, a law ratified by the British parliament, which, while permitting limited Irish “home rule,” maintained London’s claims to the island. In a contrasting move—which would have undoubtedly been recognized by Crown administrators at the time—the nationalists’ paragraph on religious freedom took its language from the 1937 Constitution of Ireland, a document that aimed to establish total Irish independence from the British. As one of the Ceylonese drafters put it, the “Free Lanka” Constitution drew from a text that effected in Ireland “a definitive break with the past” and “conduct[ed] what, in law, was a revolution.”

We can now view the nationalist’s construction of religious rights in a new light: as a polemic against Jennings’ and an invocation of alternate discourses from Europe, the U.S., and India; as a desire to mark particular distinctions and affinities (with Ireland in 1937 and not 1920, with the allied United Nations and not Britain alone); as an effort to treat constitutions not as something given to a nation by colonial governments, but as something claimed by its citizens. The legal syntax of religious rights, read against the grain, historicized, reveals the very thing that rights-discourse obscures: the fragile, contingent, interested, political nature of religious rights, and the embeddedness of rights discourse in larger local, regional, and global struggles for power and control.

The nationalists’ paragraph of religious rights was not included in Ceylon’s independence constitution. And this is part of the story too. What determined the shape of religious rights in 1940s Sri Lanka (and elsewhere in Southern Asia) was not simply a concern with the importance of resolving religious disputes or protecting religious communities, but a concern with making sure that the language chosen signaled the appropriate alliances and echoed the appropriate politics. In Ceylon, where the handover of power occurred exclusively by way of negation with the Crown, colonial politics prevailed over anti-colonial politics and Jennings’ draft, rather than the nationalists’ draft, served as template for the 1948 Ceylon Constitution. In India, where anti-colonial movements had much greater influence on the process of decolonization, a new, more nationalistic constitution (completed by a sovereign Constituent Assembly just after independence) cast religious freedoms in the idiom of fundamental rights. In each case, the rhetoric of religious freedom bears the marks of struggle, perhaps more than resolution. It imprints the politics of the 1940s: the politics of fundamental rights, the politics of colonial resistance, and the politics of constitution-making in the twilight of empire.

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.

One of the key words in the religious freedom lexicon in the United States has been “establishment,” generated by the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”; Establishment has become the base criterion by which the possibility of religious freedom has been measured. Discussing the relationship between these two concepts has become something of an intellectual cottage industry, which has been transformed into a national export. Nations that do not espouse the sort of constitutional disestablishment embraced in the US example are often suspect, as is their ability to support any sort of meaningful religious freedom. But disestablishment as a conceptual touchstone and ultimate goal does not translate especially well into other contexts, nor, perhaps, even in the American context. A number of scholars, especially Sullivan, have seriously dented the establishment armor, pointing out that religious establishment has immobilized social institutions like law, preventing them from engaging in creative thinking about religious freedom. Nonetheless, the myth of disestablishment continues to hold sway as the place from which to begin discussions about religious freedom. Further, there is some evidence to suggest that religious establishment, defined in US terms, has created space in some jurisdictions for religious minorities in public discourse. And, equally important, it has created space for the non-believers, atheists, agnostics, humanists, and the indifferent. The UK provides perhaps the best example of this, although the situation there is informed by historical and global confluences and tensions over who has a voice that are too complex to review here.

My argument is not simply for a critical assessment of whether or not establishment exists, but for a shift in analytical focus from the constitutional discourse on establishment and its attendant discussion of church-state relations to one that begins with different assumptions and questions. If the state is always assumed to have a relationship with religion in one form or another it might then be possible to move out of the binary of establishment-disestablishment, which would in turn shift the focus to mapping the contours of the myriad and dynamic ways in which that relationship works. It might then also be possible to step away from the freedom-disestablishment association that stifles critical and creative analysis. This in turn could prompt a more sophisticated treatment of power that would embrace a relational understanding of power relations rather than a narrowly hierarchical one. Although it might be objected that an assumption of a relationship goes too far, evidence from a number of liberal Western democracies suggests that this sort of acknowledgement is realistic and accurate.

An example of the type of analytical shift in direction being suggested is illustrated by the work of James Beckford in “The Return of Public Religion? A Critical Assessment of a Popular Claim.” In this article Beckford reviews the relationship between the British state and organized religion. He reflects on the often heard yet contradictory statements that religion is enjoying a resurgence in the public sphere and that religion is systematically excluded from public life. Beckford addresses this contradiction by pointing out that the state, political society, and civil society have never been neatly divided in Britain. He then outlines the British government’s strategy for engaging with religion as a strategy for both blurring the line between state and civil society, and for managing religious and ethnic diversity. He doesn’t use the word “establishment” or “religious freedom” once in his article, and only a couple of times specifically mentions “church-state” relations. Yet the analysis is rich in insight in terms of the ways in which religion, spirituality, state, public, and private are layered through each other. Beckford also highlights the relational rather than hierarchical nature of these engagements.

It might be useful to complicate the discussion about religious freedom, then, by embracing two assumptions: first, that religious freedom means different things in different contexts, and thus an interesting analytical launching place might be engaging in an exploration of how (or whether) religious freedom is being used and by whom, rather than whether a state has an established religion; and second, that all states have a relationship with religion(s) and that it is not, in fact, always possible to make clear distinctions between the state and civil society in the first place. What emerges as being important, then, is the exploration of the nature of that relationship, the framing of interests, and the ways in which interests collude or clash. Does this mean that an analysis of (dis)establishment is never relevant or should be completely displaced from discussions of religious freedom? Not necessarily, but decentering establishment can yield some fruitful results. To illustrate, I’ll draw on a Canadian example.

Is there a religious establishment in Canada? Yes and no. The constitution does not explicitly address establishment, but instead guarantees religious freedom in the Charter of Rights and Freedoms. However, the preamble to the Charter states: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law,” and in Section 29 recognition is given to the historic compromise that supports state funding for Protestant schools in Québec and Roman Catholic schools in Ontario. Public discussions of religion sometimes casually mention that “we have separation of church and state” in Canada, even though this is not constitutionally true, and, in fact, evidence from the constitution itself as already noted would support the opposite conclusion. David Martin has argued that there is a shadow establishment, and others have suggested similar conclusions. I have argued that there exists a Christian hegemony, which is embedded in social institutions and which shapes not only the ways that religion is imagined, but also the construction of nation, values, citizenship, conceptual drivers like multiculturalism, and Othering discourse.

As Beckford argues is the case in Britain, in Canada too the divisions have never been clear between state and civil society. The services of religious organizations were called upon by the state, for example, to deliver schooling to aboriginal children. This was a collaboration that met the needs of both religion and state, the former to save the souls or missionize those they viewed as being uncivilized and in need of being saved, the latter to civilize and nation-build. Does disestablishment make sense in the Canadian context? Not really. The ongoing relationship between the state and religion, and their close intertwining to the point of being indistinguishable mean that religion is so embedded in the social structure and institutions of this nation that it is impossible to untangle them from each other. Therefore, any claim to disestablishment ignores the historically embedded power relations that shape contemporary developments. One of those developments has been the decision by the Canadian government to establish an office of religious freedom.

In its election platform released in April 2011 the Conservative Party announced that it would pursue the establishment of an office of religious freedom. In the June 2011 Throne Speech the (by then) conservative majority government announced that it was indeed establishing such an office. On October 3, 2011, the government held its first consultation meeting about the office. Subsequently the government came under criticism, primarily for its limited, conservative-Christian-heavy consultation process and for the suspicion that the office would be primarily aimed at securing and protecting Christian missionizing. Several things are of interest for the purposes of this discussion: first, one of the 6 people consulted was Thomas Farr, who was the first director of the US International Office of Religious Freedom; second, through ministers’ speeches the government has consistently linked democracy and religious freedom, stating that “The long history of humanity has proven that religious freedom and democratic freedom are inseparable.” Finally, both establishment and disestablishment regimes (Canada being the former, the US the latter) have been able to support the idea of an office of religious freedom. In the Canadian context the accusation that the inclusion of an office of religious freedom violated the principle of separation of church and state was countered with the fact that Canada does not, in fact, have a separation of church and state and that this idea is imported from the US. In the US, with its official disestablishment, the office of religious freedom has been justified as an expression of the commitment to this ideal. It is clear that establishment, quasi-establishment, or disestablishment are of little relevance in this. The more telling discussion relates to how religious freedom is being defined, by whom, and for what purposes. Preliminary descriptions of the Canadian office, for example, state that the office will “monitor religious freedom around the world, to promote religious freedom as a key objective of Canadian foreign policy, and to advance policies and programs that support religious freedom.” But it remains unclear what exactly this means: Will the office of religious freedom concern itself with Latter-day Saints who proselytize globally? Will it worry about Jehovah’s Witnesses forced into military service in South Korea? Will the office of religious freedom worry about Muslims in Switzerland who cannot build minarets, or Muslim women in France who cannot wear the niqab? Or will it concern itself with matters closer to home, like niqab-wearing women in Canada who must strip off their face coverings to take the oath of citizenship? Whose religious freedom will be defended and where?

Finally, while a critical analysis of the various ways in which religious freedom is deployed is important, equally crucial is suspicion about the ways in which religion is constructed by majorities as “culture,” thus displacing discussions about religion and religious freedom altogether. The 2011 Lautsi and Others v. Italy decision in the European Court of Human Rights, developments in the Canadian province of Québec, and case law in both the US and Canada serve to make the point. In Lautsi, a crucifix and Roman Catholicism were transformed in arguments by the Italian state from religious symbol and religion to cultural symbol and universal values. Thus, the crucifix in an Italian classroom wall was not ‘religious’ but ‘cultural’ and part of Italian heritage. A similar sleight of hand occurs in the Canadian province of Québec when the Bouchard Taylor Commission Report recommended that the crucifix be removed from the Salon Blue, which is the provincial legislature. The day the report was issued the National Assembly voted unanimously to keep the crucifix, stating that it was an important symbol of Québec’s heritage; Québec historically has had a Roman Catholic hegemony. Early post-Charter Sunday closing cases in Canada engaged in similar transformative exercises, most notably in R v. Edwards Books and Art Ltd., when the Supreme Court of Canada declared that Sunday as a day of rest had nothing to do with Christianity. A similar transformation of religion to culture occurs in the United States, perhaps most famously in the Lynch v. Donnelly case.

By constructing the practices of religious majorities as culture rather than as religion they become a benign presence in the face of the (dangerous, offensive, alien) religious practices of the Other or of the (also dangerous) godless atheist. By pushing past establishment frameworks and exploring the ways that particular religious traditions/practices/beliefs are woven though social institutions and practices, a richer exploration of religious diversity and religious freedom becomes possible.