I have been observing and analyzing religious trends in various parts of sub-Saharan Africa for several decades, with a particular focus on new religious movements, variously termed “minority religious groups,” “sects,” or “unconventional religious groups.” My years of living in southern Nigerian cities afforded me valuable insights into the workings of complex religious landscapes. As democratization, neoliberalism, media deregulation, and global religious activism increasingly change the stakes of coexistence between religious groups, and between such groups and the state, the management of Africa’s increasingly competitive religious public spheres has become a more compelling area of investigation. How do state and non-state agents act to facilitate or limit the public functioning and recognition of some or all religious organizations? How do the resources on which they draw, such as globally circulating ideas about “international religious freedom,” serve to frame what counts as (good or bad) religion? Which constitutional or statutory provisions are they informed or bound by in negotiating religious diversity? How much do local histories, politics, and demographics continue to influence the balancing of majoritarian and minoritarian religious interests?

In a recent article on “Regulating Religious Freedom in Africa” I explore the legal and non-legal strategies of keeping religious groups in check and note that African states frequently invoke limitations on religious practice and association in the name of public interest. Elsewhere I have also paid some attention to the growth of mass-mediated forms of religious expression in Africa and their capacity to open up new possibilities for religious communication, often providing increased visibility and audibility for minority religious groups. Yet this recent liberalization of the media sector across Africa also replicates or generates patterns of exclusion and discrimination through the granting of licenses, transmission power, broadcasting access, and program content.

The angle I will pursue here is the treatment of indigenous forms of African belief and practice in light of these post-colonial reconfigurations, or what Jean and John Comaroff term the Age of Millennial Capitalism. African traditional religions were particularly vulnerable during the earlier phases of Christian and Muslim missionary activity and colonization. The current dominance of Christianity and Islam is well evidenced by the Pew Forum project on religion in Africa. Indigenous religions are still largely perceived as pre-modern with ambiguous status as either religion or culture; they struggle for public recognition and equal treatment under the law. Moreover, they are hampered by being part of a generalized and heterogeneous category, with no clear designation or centralized leadership. This recalls some of the legal battles that American Indians faced in trying to prove that their traditions are “religious” so that they could enjoy constitutional protection, as Tisa Wenger discusses in her appositely titled book on the 1920s Pueblo Indian Dance Controversy, We Have a Religion.

So while it is Muslim-Christian relations in Africa that command current geopolitical attention, we should not overlook the fact that sub-Saharan Africa provides some of the most instructive examples of how indigenous religions are still religious freedom misfits. Kenyan legal scholar Makau Mutua has made the most forceful case that local forms of religious belief and practice have been subject to ongoing delegitimization by the state in collusion with missionary religions and post-colonial elites. He writes pointedly of a “constitutional silence” and an “absolute refusal to acknowledge the existence of African religions or cultures” in the country of his birth. Moreover, Mutua contends that the “liberal generic protection of religious freedoms,” with its guarantees of the right to manifest, propagate, and change one’s religion, favors mission-related religions and is ultimately inimical to indigenous African religions and lifestyles (Wole Soyinka makes similar arguments about the aggressivity of the so-called world religions in his latest book, Of Africa).

Furthermore, Mutua argues, limitations on religious freedom for reasons of “public morality” and “public health” target the elements of traditional religious practice that many colonial states found problematic, even abominable. Such fears and statutory tests perdure in modern times (see Enyinna S. Nwauche on Nigeria, E. K. Quashigah on Ghana). In his research on restrictions on religion worldwide from 2006-9, Brian Grim notes that, after Christians and Muslims, members of “tribal or folk” religious groups are the most commonly harassed group in Africa (in twenty-three countries). In sub-Saharan Africa, the harassment is generally linked to accusations of witchcraft, ritual sacrifice, and charlatanistic healing practices. Nigeria’s booming video-film market, known as Nollywood, has helped perpetuate negative stereotypes across Africa about traditional cultural practices. So, too, has the sensationalist media coverage in Africa and the diaspora of purported ritual abuse of African children suspected of witchcraft. Evangelical and Pentecostal movements generally lead the fray in demonizing indigenous religious and cultural practices.

South Africa is one of the optimal places to explore current debates over the status of traditional African religion(s) in a modern post-colonial state. The radical transformation from apartheid to democracy generated a wealth of public debates, policy initiatives, and scholarship on matters pertaining to discrimination and self-determination. On the face of it, traditional forms of religious belief and practice appear to be almost nonexistent (0.3%), according to the country’s 2001 census. Nearly 80% of the population identify as Christian. But as the contributors (mainly legal experts) to a most valuable 2011 book, Traditional African Religions in South African Law, underscore, the defining and classifying of these religions is still a live issue. These contributors discuss a number of recent legal cases that have tested the even-handed treatment of traditional religions under the new constitutional protections for religious freedom. The conflation of traditional religion and culture, and an emphasis on communal identity, proved problematic in some human rights cases, as exemplified in the public outcry and lawsuit (the Smit case, 2009) over a ritual bull slaughtering in a revived Zulu First Fruits Festival. While the case brought by animal rights activists was eventually dismissed for want of factual evidence, Christa Rautenbach argues that demonstrating that the festival was “religious” and not “cultural” in nature (despite the interdependency in practice of religion and culture) would have afforded greater protection from the judiciary. Similarly, Jewel Amoah and Tom Bennett note the surprising lack of reference to religious beliefs in legislative efforts to reform the laws of African customary marriage. They see this as ongoing evidence of the way that indigenous African religions are being treated as “incidents of African culture,” and the effect of this in depriving practitioners of the legal deference shown to other religious communities.

Another critical and contentious issue, ably discussed by Nelson Tebbe, is the outlawing of witchcraft by the government and human rights organizations. While the practice of naming witches may be permitted under free speech and religious freedom, so too limits on the practice may be allowed because of its often violent consequences. This has resulted in backlash from South Africa’s pagan and Wiccan communities, such as the South African Pagan Rights Alliance. Furthermore, the problems of trying witches in state courts and allowing religious experts to give evidence would compromise constitutional prohibitions on government involvement in religious affairs.

Because of her background in politics, broadcasting, and higher education, Nokuzola Mndende, one of the leading advocates of African traditional religion (ATR) in South Africa today, is highly critical of the ways her religious heritage continues to be misrepresented or underrepresented by media organizations. As conveyed by the title of her 2009 book, Tears of Distress: Voices of Denied Spirituality in a Democratic South Africa, she finds it problematic that traditional religion is often represented in the public sphere by “white reverend gentlemen,” African Christian converts, and syncretistic diviners, or that it only gains legitimacy as an appendage to Abrahamic religions or as a secularized form of traditional healing. Mndende therefore calls for “affirmative action” by the South African government to redress the fate of “disadvantaged religious communities.” It remains to be seen if the proposed South African Charter of Religious Rights and Freedoms (in whose drafting Mndende has participated) will provide any such benefits.

Marleen de Witte’s insightful work on the neo-traditionalist Afrikania Mission in Ghana also addresses the challenges facing such revivalist political-religious movements as they seek to be modern and African. These local struggles are bound up in decades of subjugating encounters with missionaries, colonialists, and scholars (whether of anthropology or comparative religion). Witte provides a rich discussion of how Afrikania seeks to negotiate the new media opportunities and constraints, knowing that how it represents its “traditions” and “spiritual power” to the predominantly (Pentecostal) Christian Ghanaian public is critical to its survival as the principal face of ATR in Ghana. She argues that this overly intellectualist focus on “representation” comes at the expense of the shrine practitioners’ practices and concerns. Some of the latter feel that traditions of secrecy have been sacrificed in the quest to produce a modernized, “world religion.” Furthermore, Witte describes Afrikania’s position as “difficult and ambiguous” as it seeks to defend “superstitious” religious practices, such as libation, as part of its nationalist heritage project, even when these run afoul of “universal” human rights norms embedded in the Ghanaian constitution.

David Chidester has long claimed that the “inventory” of religious elements that have come to characterize African traditional religion (belief in God, veneration of ancestors, sacrifice, initiation, divination, and healing rituals) are products of “colonial containment” and “Christian theological appropriations.” This recalls Birgit Meyer’s observation that Protestant missionaries in colonial Ghana attempted to “lock” people up in their own culture to prevent the development of syncretistic beliefs that might threaten the colonialist and nationalist project. In his latest book on the wild and surprising religious creativity of South Africa, Chidester discusses how, under the post-apartheid national motto, “Unity in Diversity,” political leaders have drawn on indigenous religion as a national resource, whether as the spiritual dimension of heritage projects or through rituals at key national and international events, such as the World Cup in 2010. Chidester also considers how traditional religion finds its way into religious tourism, school syllabi, global Zulu spirituality, New Age neo-shamanism, and traditional sovereignty. Facilitated by South Africa’s new democratic dispensation, these “transactions,” as he terms them, are often contested by those seeking to protect their sense of religious integrity, whether African traditionalists or devout Christians.

While the government of South Sudan is taking encouraging steps to include traditional religions in its new political dispensation, as noted by Noah Salomon in an earlier posting, the reality is that only one African state, the People’s Republic of Benin, officially recognizes traditional religion in its constitution, granting it a national public holiday. In Nigeria, the International Congress of Traditional Religion and Culture has advocated (unsuccessfully) for similar state recognition. This may account for why some movements such as Godianism—a traditional religious expression of Nigerian nationalism at the dawn of independence, now known as the Global Faith Ministries of Chiism—reinvent themselves as modern and family- and heritage-oriented. Cultural tourism, especially if it receives the UNESCO World Heritage imprimatur, is a way to attract state support for traditional religious festivals, as evidenced by the internationally renowned Osun festival in Nigeria’s Osun State. Another strategy is for traditional religious practitioners, especially healers, to create associations that promote their interests in the public sphere. The Zimbabwean National Traditional Healers Association (ZINATHA) and OrisaWorld, a global association to promote Yoruba religion, are cases in point. The latter is a vivid example of the strategic role that diasporic communities can play in the promotion and protection of traditional religious practices in their home countries. We should not neglect to mention the capacity of academic publications to legitimate the category of traditional religions for wider audiences, from the landmark works of John Mbiti beginning in 1969 through to recent texts such as Orisa Devotion as World Religion. Ugandan scholar Okot p’Bitek had already signaled the delegitmating power of the Western scholarly lens in his 1970 classic, African Religions in Western Scholarship.

While indigeneity is arguably more strategic than ethnicity in protecting the rights of traditional African religions, the indigenous rights option as a tool for social and political mobilization turns out to be a less viable alternative. In the view of Dorothy Hodgson, the criteria in Africa for deciding who is indigenous are far “murkier” than those used to identify first peoples of the Americas. A la Cultural Survival, indigeneity tends to be used to refer to those with distinctive lifestyles, such as pastoralists and hunter-gatherers. In contrast, others would claim that all Africans are indigenous.

Moreover, Ronald Niezen’s trenchant discussion of the ambiguity and paradoxes surrounding the concept of “indigenous religion” leaves us in no doubt about the effects of human rights activism and public and popular mediations of human difference in a globalizing era (see also Rights and the Politics of Recognition in Africa). Recent moves to grant institutional, protective space to indigenous expressions of “spirituality” not only essentialize and objectify traditional forms of belief and practice but also translate and recast them to appeal to cultural outsiders who formally or informally adjudge these rights claims.

Despite the undermining of African states by neoliberal policies and unreliable governance, the national level remains strategic for thrashing out respect for what du Plessis terms a “jurisprudence of difference.” The interpretation of the relationship between religion and culture is currently more consequential for traditional African religions than individualized notions of religious freedom in relation to a secular state. That notwithstanding, the local and global debates over what counts as “African,” “traditional,” “indigenous,” “religious,” and “freedom” are all grist for the religious freedom analytical mill.

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.

It was not until the introduction of democracy in 1994 and the adoption of South Africa’s Constitution that a commitment was made to foster a society that is tolerant of diversity and does not posit one religion above another. This is evident in sections 15 and 31 of the 1996 Constitution: s15(1) protects every individual’s right to freedom of religion; s15(2) allows religious observances to be conducted at state or state-aided institutions; s31(1) protects the collective right of religious communities to practice their religion and to establish and maintain religious associations; s15(3)(a) permits the enactment of legislation to recognize religious marriages or religious personal or family law systems. In fact, s15(2)-(3) enables the establishment of a semi-secular, legally pluralistic society that involves an intersection between religion and the state where government is encouraged to support religion. Yet, in an attempt to ensure that discriminatory religious rules and practices do not permeate the legal framework of South African family laws, an internal limitation was added to s15(3), which provides that any legislation that purports to recognize religious marriages or religious personal or family law systems must be consistent with other constitutional provisions including gender equality. While none of the rights in the Bill of Rights are absolute, the internal limitation on religious freedom appears to subordinate the regulation of religious marriages or religious personal or family law systems to gender equality.

It was within the paradigm of s15(3)(a) that the South African government enacted the 1998 Recognition of Customary Marriages Act to provide full legal recognition to customary marriages. Subsequently, same-sex marriages were also afforded recognition through the 2006 Civil Union Act. The SA government further initiated a process as early as 1994 to ensure legal recognition for Muslim marriages. Given the spatial constraints of this paper, I consider only some of the implications of the process to recognize Muslim marriages in this essay.

After extensive consultations with the South African Muslim community and broader civil society that spanned several years, the South African Law Reform Commission, which was tasked with drafting legislation to recognize Muslim marriages, submitted a Muslim Marriages Bill (MMB) to the Minister of Justice and Constitutional Development in 2003. Seven years later, the Department of Justice and Constitutional Development (DoJ) effected some amendments to the MMB and submitted an amended MMB to Cabinet, which was approved by the latter at the end of 2010. The public were invited to make submissions on the 2010 MMB by 31 May 2011. To date, the DoJ has not yet finalized the processing of those submissions.

Several interesting observations have emerged from the process relating to the recognition of Muslim marriages. For the purposes of this paper, I shall focus on two namely: a) the reasons for the delay in recognizing Muslim marriages; and b) the different responses to the MMB.

To date, no official reason has been given by the DoJ to explain why after 18 years since the advent of democracy, Muslim marriages have not been afforded legal recognition; especially since customary marriages and same-sex marriages have been recognized.

One can only speculate as to why the process for the legal recognition of Muslim marriages appears to be going nowhere slowly. In the first instance, the political imperative to recognize customary marriages was overwhelming since the majority of the South African population comprises black Africans. The same political imperative does not appear to exist for minority religious communities, the largest of which—namely the Muslim community—comprises 1.5% of the population. Secondly, the position of Minister of Justice and Constitutional Development has been occupied by several different politicians since 2003 and the progress or stagnation of the process perhaps depended on their own political inclinations about whether or not the state ought to regulate minority religious marriages. Thirdly, consensus about the MMB is lacking within the Muslim community and broader civil society, and perhaps the Ministry of Justice and Constitutional Development is hesitant to move forward with draft legislation that is perceived as contentious. Yet, if the latter reason is the real justification for delaying the process of recognition then it is disingenuous because the national government has enacted several contentious pieces of legislation since it assumed power in 1994, including the 1996 Choice on Termination of Pregnancy Act.

The only other reason that makes sense for the delay in enacting legislation to recognize Muslim marriages is that government lacks the political will to do so. This clearly means that an entrenchment of fundamental rights in a Bill of Rights does not guarantee their automatic implementation. Instead, a strong and un-apathetic civil society is required to hold government accountable to its constitutional obligations. Therefore, those within the Muslim community and broader civil society who support the enactment of legislation to recognize and regulate Muslim marriages need to provide the political incentive for such enactment to take place. For instance, the Muslim community needs to take the lead in mobilizing and launching a strong and sustainable campaign for the recognition of Muslim marriages, which to date they have not done. Furthermore, civil society should use the courts and launch a civil action against government to encourage enactment. In 2009, the Women’s Legal Centre (WLC), which is a NGO that litigates gender-based precedent setting cases, did just that but launched its action in the Constitutional Court (CC) instead of the High Court (HC). The CC decided that there was no basis for the WLC to have direct access to the CC and directed them to re-launch their action in the appropriate HC. Although no order was made in favor of the WLC, the positive consequence of that action was that it motivated government to apply their minds to the 2003 MMB, which resulted in the submission of the 2010 MMB to Cabinet and its subsequent approval by the latter. Consequently, the WLC saw no need to re-launch its action in the HC. However, that was three years ago. Perhaps it is time for another launch of the action.

The second observation about the process for the recognition of Muslim marriages relates to the different opinions that were formulated in response to the MMB over the past several years. Indeed, there are those who support the MMB and those who oppose it. Yet, the matter is far more complex given that the support for and opposition against the MMB is multi-layered and has exposed interesting bedfellows.

In the camp opposing the MMB, several components are identifiable. The most obvious are the Muslim extremists; some of who oppose any type of state regulation of Muslim family law by a non-Islamic state and prefer that the status quo be maintained, namely, that the ulamā (Muslim clergy) should continue to regulate Muslim family law within the community. Others advocate for the establishment of a separate sharia court that they argue should operate alongside the secular court system and should be presided over by members of the ulamā. There are also those Muslims who feel that their Islamic schools of thought are not catered for in the MMB. The most prominent of the latter dissident voices follow the Shia tradition but comprise a small minority within the South African Muslim community. Within the same opposition camp, secular extremists ironically find themselves locking arms with the Muslim extremists because they too favour a strict separation between religion and state. The final component within the opposition camp is the gender advocates who expect the MMB to be absolutely gender consistent before they will consider bestowing their blessings upon it.

On the other hand, there are those gender activists who, along with progressive Muslims, support the enactment of the MMB. These two groups acknowledge that the MMB is challengeable on the grounds of gender equality, but also realize that if enacted, the MMB promises to provide more protection for women than they currently have. The driving force behind their support is the achievement of substantive equality as opposed to formal equality. They also recognize that there will be opportunities after the MMB is enacted to institute constitutional challenges against the gender-problematic provisions.

A third component, namely moderate members of the ulamā, is further discernible within the camp supporting the enactment of the MMB. This group understands that South African Muslims are a minority operating within a constitutional framework and that any recognition of Muslim family law will need to happen within that framework. They therefore seek to have the Islamic principles governing marriage incorporated into the MMB in a way that produces a balance between constitutional expectations and Islamic prerogatives. For these reasons, the moderate members of the ulamā supported the 2003 MMB because it constituted a reasonable compromise. However, they have expressed dissatisfaction with the 2010 MMB because for their purposes, it departs from the 2003 MMB in two significant ways. Firstly, the 2003 MMB enabled adjudication of disputes arising from the MMB to be presided over by Muslim judges from within the secular judiciary sitting with Islamic law experts as assessors. In contrast, the requirements that the judge must be Muslim and must adjudicate with Islamic law experts have been removed from the 2010 MMB. Secondly, the 2003 MMB required binding arbitration to precede the dispute going to court whereas the 2010 MMB proposes voluntary mediation to enable the parties to settle their dispute prior to adjudication. The latter change is problematic for the ulamā because they envisaged the arbitration process as the medium through which they would play a significant role in the management of disputes relating to Muslim marriages and divorces.

Interestingly, although the aforementioned changes appear to have secularized the 2010 MMB more so than the 2003 MMB, the 2010 MMB has also been Islamized to a greater extent. For instance, a definition for Islamic law is included in the 2010 MMB, which limits the types of Islamic law sources that a judge can rely on to only a few traditional ones. This may constrain the extent to which reform of Muslim family law may be affected through the MMB. Hence, the increased Islamization of the MMB has caused some consternation among Muslim progressives who supported the 2003 MMB. Yet, Muslim progressives and moderate members of the ulamā who supported the 2003 MMB do not reject the 2010 MMB and are willing to negotiate with the DoJ to revisit the problematic provisions of the MMB.

It is unfortunate that the DoJ decided to effect changes to the MMB without consulting with the relevant stakeholders within the Muslim community and broader civil society since there had been a general consensus in favour of the 2003 MMB, which had emanated from a widespread process of consultations. Although not perfect, the 2003 MMB had contained innovative mechanisms for the regulation of minority Muslim marriages within a secular legal framework. Given the disagreement over the 2010 MMB, it may mean that parties will have to retreat to the drawing board, which means more time wasted while the rights of Muslim women continue to be negated.

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.

First, as the entries by Noah Salomon, Mathijs Pelkmans, and Robert Hefner, among others, show, it is useful to step back from the US, and even from Western Europe, to consider alternative ways of organizing diversity. In northwest Madagascar, where I have conducted ethnographic fieldwork sporadically over a couple of decades, there has been religious freedom in the sense that the boundaries between practicing Christians and Muslims are fairly open and, even more, insofar as it has been perfectly acceptable to be neither Christian nor Muslim, without thereby being designated as immoral or ‘primitive’ or subjected to undue missionary activity. As I’ve written elsewhere, some families might gently direct one of their children toward Islam, another toward Christianity, and a third to ‘ancestral practices,’ which are simply referred to as “non-congregating” (tsy mivavaka) rather than by any substantive definition. Some people engage in combinations of each. Although I would not advocate a causal explanation, the pattern fits nicely with the logic of bilateral kinship and wide exogamy. Most people can recognize at least four grandparents and probably eight great-grandparents (and beyond), each of whom may have a distinctive identity with respect to social, political, religious, and geographical affiliation. From among these senior living or deceased relatives people make choices of stronger or weaker identification, influenced by such factors as which grandparent one is sent to stay with on vacations as a child and ending with in whose tomb and which mode of burial one finds oneself.

This enables an open society with a good deal of mutual understanding and respect, in which no single identification or institution behind it is absolutized. In some respects one could say the individual has a good deal of freedom of choice. However many Malagasy do not experience things in quite this way. In explaining why they live in one place rather than another or carry out a particular set of ‘religious’ or ‘ancestral’ practices they would say they had been called to it by a particular ancestor, who by showing them signs, notably manifest as illness or troubling dreams, subjects them to prohibitions which align them more firmly with that ancestor rather than others. Servants at the ancestral shrines were forced some generations ago to work there. Today those who remain as their successors cite the wrath of their own ancestors as the reasons for staying on.

In all this there is also a logic of the negative. People are defined and define themselves in the first instance by what they don’t practice, by the kinds of praying they don’t do, the foods they cannot eat, the days they cannot work, or the kinds of work or acts of deference they cannot perform, rather than by positive attributions. This is a kind of freedom by restriction; in clarifying the boundaries of what you cannot do, it leaves wide open what you can do.

My second general comment is that however we want to define religion (and perhaps we could take a leaf from northern Madagascar and leave it open, specifying only what it is not), one of the general features, as the Malagasy ethnography also suggests, is a kind of submission to something conceived as larger, higher, or more powerful than oneself. Durkheim called it society; Maurice Bloch calls it deference to authority or to other persons; Roy Rappaport describes it as one of the entailments of engaging in ritual performance. In participating in a ritual, whatever one’s state of mind or ‘belief’ at the time, and irrespective of the semiotic ideology that Webb Keane rightly and compellingly points to, one is accepting the outcome (assuming that the felicity conditions of the performative event are met) and moreover accepting the meta-performativity, i.e. that acts and utterances of this kind, felicitously produced, have the consequences that they do. To perform a ritual is, in the end, to accept a certain liturgical order of which it is part (irrespective of whether this also entails deference to specific officials, like priests). In other words, the freedom to carry out certain kinds of acts is premised on subjection to an order that defines what such acts are, that puts things under a definition and regulates the changes in definition. As I elaborate elsewhere, the process is one of the instauration of ethical criteria and it is intrinsic to human speech acts. Insofar as what we refer to as specifically ‘religious’ includes the most formal and consequential kinds of performative acts (baptized or not, etc.) one might say that what religion is not is freedom.

Hence the very idea of freedom of religion is paradoxical; it is the freedom to be unfree in a particular kind of way. Judicial and legislative bodies need to take this point, call it the relativity of freedom or unfreedom, or the deconstruction of freedom, into account. They need to notice Sullivan when she points to “the reinstatement of the rights of religious authority by political authority—in the name of religious freedom.” They then need to make informed decisions about which versions of unfreedom to support—and we should all, as Saba Mahmood emphasizes, pay attention to the politics and ideologies that underpin such decisions (a skepticism I share with Lori Beaman, concerning federal government initiatives at the present time in, of all places, Canada). If Muslims were the ones taking the lead in the US courts asking for certain rights and freedoms, surely the self-same justices would have argued another way.

This is certainly not to say let everyone be free to do as they please. Not only is such freedom impossible in the human condition, but there is the matter of whether my freedom impinges on yours. To emphasize a point in Mahmood’s account and mentioned in some of the other posts, the freedom of religion we demand elsewhere (though the point applies internally as well) too often means the freedom to missionize other people. The freedom to practice my religion impinges on the freedom to practice yours in peace.

We need to be careful here. I am not a historian but I imagine that religious freedom once meant freedom from oppression by the proponents of a stronger religion rather than freedom from interference by the state or the right given by the state for specific religions to interfere in other peoples’ business. Certain proponents of religious freedom in the US now seem to want to have it both ways: the state is criticized both for being secular and for promoting a ‘religion’ of its own. What is missing in such arguments is attention not to one’s own rights or freedoms but the obligation to enable the rights and freedoms of others.

The rhetoric of the bishops’ statement is familiar to anyone who has followed conservative Christian activism around the cause of religious freedom in the United States over the last two decades or so, though the recourse of Catholic officials to such language is a relatively recent innovation. Meanwhile, their definition of “religious freedom” or “religious liberty” remains both opaque and expansive—again, in imitation of conservative Christian activism tout court. The bishops note the priority of the first amendment to the U.S. Constitution, and the priority of (“our first…liberty”) religious freedom among the freedoms guaranteed by that amendment. Acknowledging that Americans are not alone in their claims concerning freedom (“freedom is not only for Americans”), they nevertheless see the United States as exceptional in its relationship to it (“we think of it as something of our special inheritance”), seeing Americans as the particular guardians of freedom (“we are stewards of this gift, not only for ourselves but for all nations and peoples who yearn to be free”).

The bishops go on to enumerate specific examples of “religious liberty under attack.” By the logic of priority, the mandate issued earlier in the year by the Department of Health and Human Services requiring health insurance coverage for contraception (which the document calls “HHS mandate for contraception, sterilization, and abortion-inducing drugs”), part of the administration’s efforts to assure compliance with the ACA (aka health care reform), holds pride of place in the list of instances of religious freedom under siege. But the bishops cite a number of other domains of constraint: the refusal by state and local authorities to use the foster care or adoption placement services of Catholic Charities because of the organization’s unwillingness to place children with cohabiting or same-sex couples; the state of Alabama’s punitive anti-immigrant legislation; the denial of official recognition of a Christian student group at the University of California Hastings College of Law (because of the group’s requirement that its leaders be Christian and abstain from extra-marital sexual activity); New York City’s discontinuation of the practice of renting public school buildings in New York City to churches for weekend services. Religion (a category represented in the statement exclusively by Christian examples) is under siege, the argument runs, on the federal, state, and local levels, and on many different fronts.

But if the document seeks to catalog the wide range of threats to religious liberty, it is nevertheless primarily concerned with undergirding the bishops’ campaign against the inclusion of contraceptive coverage under the ACA. The document sets the terms of the debate agonistically and dramatically. Although the ACA (along with subsequent regulations issued by the Department of Health and Human Services in the spring of 2012 to assure compliance with the law) is nowhere named explicitly, it certainly resides behind the characterization of “an unjust law [that] cannot be obeyed,” a law that imposes the will of the state upon religious institutions and individuals. Arguing by analogy, the bishops juxtapose the need to disobey such an unjust law—a duty Catholics “must discharge…as a duty of citizenship and an obligation of faith”—to the religiously inflected arguments and actions of the U.S. Civil Rights movement of the 1950s and 1960s, using Martin Luther King Jr.’s “Letter from a Birmingham Jail” as their prooftext. Strikingly, the bishops also take care to distinguish between “conscientious objection” to a societal requirement (unspecified, but one might think of conscientious objection to military service) from the requirement to resist an unjust law. One can imagine that the bishops are seeking to sidestep the question of all of the other ways in which tax dollars, for example, are used to support militarism, capital punishment, or other forms of state-sponsored violence to which religious individuals or institutions might object. Opposition to these kinds of institutionalized forms of state violence does not apparently rise to the status of opposition to “unjust law,” which “cannot be obeyed.”

Framing their opposition to the health care mandate in terms of religious freedom, it needs to be emphasized, is a strategic move that narrows the terrain significantly: to oppose the bishops’ opposition to the health care mandate requires one to take a position against religious freedom. Well played, bishops.

The problem, of course, is that while the bishops speak of religious freedom and seek to portray a consensus that aligns themselves with evangelical Protestants and Orthodox Jews, they conveniently exclude from the conversation other co-religionists who do not share their ethical assessments of the particular issues under debate (e.g., access to medical services, reproductive freedom, etc.) nor their political agenda. (Consider, as just one example, the Religious Coalition for Reproductive Choice, which includes the Episcopal Church, most of the mainline Protestant denominations, the Unitarian Universalist church, virtually all of the Reform, Reconstructionist, and Conservative Jewish governing bodies, and numerous Christian and Jewish national organizations.) Moreover, while advocating for a public square in which religious arguments and actors move freely, the bishops disingenuously frame the issue as one that sets in opposition a “naked public square” (“stripped of religious arguments and religious believers”) against a “civil public square” (“where all citizens can make their contribution to the common good”), carefully disavowing any claim that they desire a “sacred public square” (“which gives special privileges and benefits to religious citizens”). “At our best,” they write, “we might call this an American public square.” Framed in this way, the very presence of religious arguments and believers is precisely what makes the public square “American.” Their absence is, on its face, un-American. And yet, if the public square is a space of deliberation and debate, a space where arguments are evaluated and contested, it seems as though “religion” itself remains somehow immune to contestation and critique—in the public square, but not of it.

One could engage in an extended exploration of the way in which the bishops’ framing of these issues, clearly beholden to nearly two decades of evangelical Protestant activism around religious freedom, depend upon a theoretical incoherency (whereby institutions protecting religious freedom must inevitably define and thereby delimit what counts as “religion”) and revisit debates over the uneasy truce between religion and politics, church and state, that has been forged by recourse to the Protestant secular. But what I prefer to do here is to engage in an imaginative exercise: What would it mean for the bishops to put their money where their mouths are and to defend religious freedom in their own polity—that is, within the Catholic church itself?

Because, on another Catholic horizon, the Vatican has decided that the exercise of what one might well call religious freedom on the part of American women religious—the exercise of conscience—is a problem requiring episcopal oversight. In other words, the sisters are in need of some church-sponsored discipline and a reining-in of their faithful enactment of their own conscience. This action has been undertaken by the Congregation for the Doctrine of the Faith (Congregatio pro doctrina fidei), the modern incarnation of the Inquisition, which has issued a “Doctrinal Assessment of the Leadership Conference of Women Religious,” the culmination of a process of critical investigation initiated by the Vatican beginning in early 2009, focused on the LCRW, an organization that represents 80% of Catholic nuns in the United States. Accused of “a rejection of faith [that] is also a serious source of scandal and … incompatible with religious life,” objectionable “policies of corporate dissent” (on issues of women’s ordination and homosexuality), and “radical feminist themes,” the LCRW has become the target of disciplinary action.

This is not the place to parse all of the details of the Doctrinal Assessment, which seeks “to implement a process of review and conformity to the teachings and discipline of the Church, the Holy See, through the Congregation for the Doctrine of the Faith.” But in the context of the US bishops’ expression of a deep commitment to the notion of religious freedom, it might be a worthwhile imaginative exercise to ponder the following question: What would a defense of religious freedom look like, if the LCWR were considered “religion” in this case and the Vatican were considered “the state”?

Of course, the authors of the Doctrinal Assessment—all American cardinals, I have been told—would reject the question as I have framed it since they insist that faithful religious life can only be lived in “allegiance of mind and heart to the Magisterium of the Bishops,” as they put it in the opening paragraph of the Assessment, where they quote from John Paul II’s 1996 Post-Synodal Apostolic Exhortation, Vita consecrata. In doing so, however, they rather show their hand. Religious freedom emerges as nothing more than a mode of shoring up the authority of the Magisterium of the Bishops, not a set of values that shelters and protects the acts of conscience undertaken by Catholic women religious in the United States. Yet ironically, recourse to a robust notion of personal conscience is an unambiguously orthodox position in Catholic theology and a fully justifiable exercise of religious freedom on the part of the nuns.

The widespread outrage among Catholics in the U.S. in response to the Doctrinal Assessment’s attack on the LCWR—outrage that has produced numerous thoughtful essays about the profound value and integrity of the actual work of Catholic nuns, vigils of support in cities across the country, and even the satirical Twitter hashtag #radicalfeministthemes—has made it clear that the actions of the Congregation for the Doctrine of the Faith does not pass a simple smell test.

In their statement on religious liberty, the Conference of Bishops writes, “The Christian church does not ask for special treatment, simply the rights of religious freedom for all citizens.” To which the supporters of the Catholic sisters in the US might simply respond, “The Catholic women religious and their allies in the church do not ask for special treatment, simply the rights of religious freedom for all members of the church.”

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.

Bangladesh is often lauded as the poster child of third-world development: the birthplace of microcredit, the harbinger of religious tolerance, and exemplar of a transition from turbulent politics to persistent democracy in the developing world. Different from its neighbors on the basis of varying post-colonial experiences and development trajectories, the religion question came to be written on the nation through a particular “secular” construction, referred to in the vernacular as dhormoniropekkhota, or “religiously neutral.” This construction initially argued for an absence of religious political parties and for equal treatment of religions by the state so that all citizens may enjoy “equal” opportunity. While the ban on religious political parties has subsequently been lifted, and greater allowances made to Islam in the constitution, these are widely considered by liberal-secular defenders of the original constitution as intrusions that have defiled the sanctity of secularism. Restoring the original secular constitution, with all its constitutive elements is, as many argue, essential for socio-economic development, successful indicators of which, such as decreased maternal and infant mortality, increased literacy amongst the poor, and innovative ideas such as credit for the poor, have garnered Bangladesh a certain degree of global visibility. These advances, many argue, have been made possible only because the language of development has steered clear of religion in an attempt to construct the ideal secular nation. In other words, pro-secular development advocates argue that development successes have occurred in spite of, rather than (in collusion) with religion and religious beliefs, practices, and sensibilities.

Parallel to the achievement of the state, donors, and NGOs in the field of socio-economic development, much of which has furthered the status women, are legal triumphs through which, unlike in the Pakistani case, the Islamist call to declare Ahmediyas apostates has not been vindicated. Thus, the state’s secular mandate NOT to define the content of Islamic belief and practice is seemingly preserved. However, this “secular” prerogative does not find equal resonance when it comes to minority populations, for whom struggles over property and other rights seldom even make it to the courts. The “triumph” of secularism thus manifests itself in keeping alive a “liberal” notion of life for the majority population. An example of this is the recent victory in which the High Court directed the Ministry of Education to take immediate steps to implement the Guidelines on Sexual Harassment and to ensure that no woman working in any educational institution, public or private, is forced to wear a veil or cover her head, and may exercise her personal choice whether or not to do so.

The privileging of a liberal notion of Islam was the raison d’etre of the secular construct whose original clause that no political party can operate in the name of religion was borne directly out of the independence struggle. The Pakistani state had asserted its hegemony on the pretext that Bengali cultural markers, on the basis of their similitude with (Hindu) West Bengal, were inadequate expressions of the “Islamic nation” that Pakistan felt it had to project itself as. The birth of Bangladesh was seen, by the ruling elite of the time, as an opportunity to construct a new national character where a monolithic notion of Islam that required purging Bengalis of their linguistic and cultural affinities would not prevail. The state, although certainly not neutral vis-à-vis Islam, thus created particular Muslim citizen-subjects, who, in order to be nationalistic, had to refrain from a public/political position on Islam. However, in the course of development and modernization, the citizen’s engagement with Islam could not be contained to rituals that linked one’s inner self to the supernatural world via pirs, mystics, sufi saints that serve as spiritual leaders in praying for and guiding one’s worldly problems, and the darga sharif, or shrine of a dead pir where prayers are believed to be better heard. Given the tensions around public expressions of religion and their presumed anti-Bengali, “anti-nationalist” affinities, how would a more “modern” engagement with Islam express itself in Bangladesh? The Islamist platform brings with it all the pent-up negativity of aggression and anti-nationalism. Other more “neutral” platforms such as the Tabligh Jama’at are just too “neutral”—almost ineffective if Islam is to deliver us from bad governance, corruption, and personal, spiritual, and intellectual bankruptcy.

Other “creative” and evolving ways are on the horizon. I encountered some of these modalities while conducting fieldwork in women’s taleem, or Quranic discussion circles, in Dhaka. While such circles are not entirely new to the cultural, religious, and political landscape of Bangladesh, the ones in which I participated, along with many others in the city, are somewhat different in their pursuit of “modern religious” engagements that refrain from affiliating with existing religious groups and political parties. While the women are conservative vis-à-vis gender and sexuality issues, they appear more open in their thoughts about the political import of their public actions.

The first explanation offered by secular liberals of this modality of mobilizing—which calls itself “a-political” in its refusal to stand on an Islamist platform while at the same time distancing itself from a Tablighi kind of personal piety—is that it is strategic, aimed at keeping at bay the anti-nationalist stigma attached to the Jama’at-e-Islami. Framing the women’s religious engagement as strategic is consonant with the secularized normative religious subject for whom religion and the public sphere do not and must not mix. Thus, it is convenient to see the desire to mix the two as an aberration, as the intransigence of secularism’s defiling elements, and therefore to predict that this must result in the women ultimately embracing Islamism. This argument, which retains for the liberal advocates of secularism their position of authority as creators and drivers of secular modernity, stems from a misunderstood notion that the secular and the religious represent distinct domains of national life, leading to distinct subjectivities. This view has been complicated through the works of Talal Asad, Saba Mahmood, Wendy Brown, as well as in recent collective publications such as Rethinking Secularism.

What are the women’s perspectives? The women believe that they are engaging in da’wa, or proselytizing, and use the same term to refer to their modus operandi. Their methods of shaping and changing the self as well as taking those selves to the public space rests in reading and following other, often competing interpretations of the Quran and Hadith along with other exegetical material and constantly bringing the ensuing understandings to bear upon current-day realities and requirements. Through such methods, the women seek to inculcate in themselves and their families deeper faith and practice, such as wearing the hijab and being meticulous in the daily prayers, as well as to create “responsible and productive” citizens. They refer to many of their outreach initiatives as “secular operations with religious undertones” and argue that the ultimate objective of living in the world is not only piety “which has its ebbs and flows,” but responsibility and accountability in creating a productive society. This phrasing reflects the attempt to make a religious agenda appear secondary to others—an effective way to draw in many (young) people towards productive community work and to disarm potential critics.

In making Islam relevant to the cultural, political, and economic landscape of the country, the women must contend with what is out there—the achievements of the development sector, the failures of twenty years of democracy, a political system that has seemingly placed religion on the backburner, and a displacement of the enchanted from “God to Bollywood.” The women, and many of their male peers, are knee-deep in thinking through how to put religion back on the table. What would be the best possible routes to achieve this task? In “effectively and productively” putting Islam back on the table, how does one stay true to God, self, and society? Thus, while the “secular-liberal” suspicion that these newly religious men and women have an agenda is not completely unfounded, their plan also consists of positing religion as a choice, albeit a very desirable and beneficial one. Such desirability of religious engagement may not keep religion in the private sphere, but it also does not approach the formal political space of the public sphere. These engagements thus not only strive to create new intersections of the religious and the secular, but also redefine and alter religious belief and rituals through dialogues, debates, and adjustments to perceived requirements of the day.

By drawing attention to the similarities in the presupposed subject of the newly religious and the secular Bangladeshis’ worldviews, I do not intend to blur distinctions and subject these women’s initiatives to either pseudo-Islamist or secular readings. What I would like to draw the reader to is the particular ways in which worlds are created through exchange and sharing and the particular language and attachments that allow them to arrive at their goals. To think about religious engagement in light of embodied practices through different modes of engagement within and outside the religious repertoire is an important exercise not only for an understanding of how religion advances in the world, but also for insights into whether, to what extent, and how all that is apparently secular delivers upon its promises.

The stakes of this conversation, especially for the field of development, in contexts such as Bangladesh and other parts of the developing world are high. The development paradigm promoted by state, donor, and NGO partnerships, which has presupposed a universal citizen subject has long kept the question of religious identity at bay. Advocates of liberal development models stand vindicated when Bangladesh does not come up on the World Economic Forum’s list of the top-ten countries ranked by the Global Gender Gap (GGG) index. Since the development process had ensured that women in Bangladesh fare better than those in India, Pakistan, Yemen, Turkey, and Egypt, amongst others, to bring to the surface how the religion question has been subsumed under and shaped by development initiatives, thus, seems not only unnecessary, but even dangerous. “Why spoil a good thing?” secular, pro-development advocates ask. But would such an insight necessarily be spoiling a good thing? Instead of preserving certain existing notions, would not a critical examination of the development process and its handling of and negotiations around religious identities open possibilities for a deeper understanding of how transformations actually occur? After all, religious identities, especially in the context of South Asia, have long been a part of one’s political and everyday existence. Religion, as far as I am concerned, has always been on the table.

I understand that if such an exercise reveals that the shaping and mediating mechanisms of the development process have stifled religious life, then secular advocates will fear sharp critiques by religious quarters, as experienced in 2003-2004 through Islamist attacks on BRAC schools. Since these events took place, several development organizations have kept as far away as possible from dealing with issues around religion. This distancing has neither silenced radical, Islamist voices, nor has it enabled a greater understanding of the dynamics of the development process or the growing appeal of faith-based development organizations. What is “Islamic” about Islamic microfinance and why is it on the rise? As a development model, does it operate on similar principles and presuppose the same normative subject as secular microfinance? These are important questions—not only because they allow us to better understand new trends, but also because they may lead to greater clarity on the effects of institutional arrangements that work upon religious ideas and practices to produce certain tangible outcomes. Exploring these questions will take away the monopoly of those who think that their (religious or secular) approaches offer the only solution. Coming at the issue without presumed distinctions between the religious and the secular, and the animosity often bred by that distinction, can lead to a better understanding of the development process, and to qualify how and why, for example, Bangladesh has managed to stay out of the list of the ten worst countries to live in for Muslim women. This research is crucial to lifting blinders that have historically been placed on groups that advocate both religion and secularism in dire opposition to one another. The gains of such an exercise would be invaluable to thinking about secularism, its limits and dispensations, and about religion as an ever-changing component of a secularizing, modern world.