The impossibility of religious freedom

by Winnifred Fallers Sullivan

In the last week the US Supreme Court has decided two religious freedom cases (Burwell v. Hobby Lobby and Wheaton College v. Burwell) in favor of conservative Christian plaintiffs seeking exemptions from the contraceptive coverage mandate of the Affordable Care Act. Liberals have gone nuts, wildly predicting the end of the world as we know it. While I share their distress about the effects of these decisions on women, I want to talk about religion. I believe that it is time for some serious self-reflection on the part of liberals. To the extent that these decisions are about religion (and there are certainly other reasons to criticize the reasoning in these opinions), they reveal the rotten core at the heart of all religious freedom laws. The positions of both liberals and conservatives are affected by this rottenness but I speak here to liberals.

You cannot both celebrate religious freedom and deny it to those whose religion you don’t like. Human history supports the idea that religion, small “r” religion, is a nearly ubiquitous and perhaps necessary part of human culture. Big “R” Religion, on the other hand, the Religion that is protected in constitutions and human rights law under liberal political theory, is not. Big “R” Religion is a modern invention, an invention designed to separate good religion from bad religion, orthodoxy from heresy—an invention whose legal and political use has arguably reached the end of its useful life.

The challenge, then, for American liberals is to explain how they can both be in favor of religious freedom for all and at the same time deny that freedom to Hobby Lobby and Wheaton College. Among other stratagems meant to solve this contradiction, the Court’s dissenters and their supporters have made various arguments to show that what Hobby Lobby and Wheaton College are doing is not, in fact, religion—that they don’t really understand how to be Christians. Real Christians, the dissenters and their supporters say, do not mix religion with business. Nor do real Christians seek to disadvantage others in the exercise of their religious freedom. Those arguments are embarrassing; more than anything else, they reveal the ramshackle structure of current religious freedom jurisprudence in the US. They expose the multiple legal fictions at the heart of any legal protection for religious freedom—legal fictions whose value is exhausted.

The need to delimit what counts as protected religion is a need that is, of course, inherent in any legal regime that purports to protect all sincere religious persons, while insisting on the legal system’s right to deny that protection to those it deems uncivilized, or insufficiently liberal, whether they be polygamist Mormons, Native American peyote users, or conservative Christians with a gendered theology and politics. Such distinctions cannot be made on any principled basis.

In his concurrence in Hobby Lobby, Justice Kennedy writes:

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief . . . It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.

High-minded words—words to make Americans proud on this patriotic weekend—but words that, in our constitutional tradition, have usually resulted in religious discrimination at the hands of the majority, not in the acknowledgment of religious freedom for those outside the mainstream. Both the majority and dissenting Justices in these two cases affirm—over and over again—a commitment to religious liberty and to the accommodation of sincere religious objections. Where they disagree is on what counts as an exercise of religion. Their common refusal, together with that of their predecessors, to acknowledge the impossibility of fairly delimiting what counts as religion has produced a thicket of circumlocutions and fictions that cannot, when all is said and done, obscure the absence of any compelling logic to support the laws that purport to protect religious freedom today.

The claims in Hobby Lobby and Wheaton College were brought under the Religious Freedom Restoration Act (RFRA). RFRA, passed overwhelmingly by Congress and signed into law by President Clinton in 1993, states that government may not “substantially burden a person’s exercise of religion” without meeting certain conditions. Justice Alito, writing for the majority in Hobby Lobby, describes RFRA as providing “very broad protection for religious liberty.”

As the majority notes in Hobby Lobby, and as many commentators have rehearsed, RFRA was enacted in response to the Court’s notorious 1990 decision in Employment Division v. Smith, a decision that severely limited the reach of the free exercise clause of the First Amendment. TheSmith decision sparked a political movement to reverse that limitation, first with the passage of RFRA; then with a flurry of other federal, state, and local legislation; and finally with the emergence of public interest groups and a specialized bar to advocate for religious freedom at home and abroad. Smith mobilized a large public across the political and religious spectrum to focus on a perceived threat to religion in general. It was, importantly, not just a movement of the right, but one that encompassed groups representing many political and theological persuasions. Religion was given new life by this politics.

A great deal of ink has already been spilled in response to the decisions in Hobby Lobby and Wheaton College. It is important, in my view—particularly for those of us who study religion—to move beyond the culture-wars framing of most commentaries and examine why it seems obvious, even natural, to the justices in the majority and to many others outside the Court that Hobby Lobby is engaged in a protected exercise of religion and that for Hobby Lobby and many others, opposition to the use of contraception is the quintessential sign of the religious. What is the religious phenomenology at work in these cases and how does that religious phenomenology reflect changes to religion in the US? It is the business of religious studies scholars to explain these phenomena, not to decry them.

The exercise of religion, as Justice Ginsburg suggested in her dissent in Hobby Lobby, might more usually be understood to be centered on activities such as “prayer, worship, and the taking of sacraments” by individuals. The government took a similar tack, imagining religion in such conventional terms, when it sought to deal with objections to contraceptive coverage by providing automatic exemptions to “religious employers,” which it defined in the regulations as “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” (Hobby Lobby Majority Opinion, slip opinion p.9)

To anyone who studies American religion, these churchy references seem astonishingly outdated: much—perhaps most—American religion today does not happen in churches. Many American Christians have, for a long time, engaged in a kind of DIY religion free from the regulations of church authorities. Their religion is radically disestablished free religion, defined not by bishops and church councils, but by themselves—ordinary Americans reading their Bibles, picking and choosing from among a wide array of religious practices. Indeed, Americans have always been incredibly varied, creative, and entrepreneurial in living out what they take to be their religious obligations—religious obligations that range far beyond the prescriptions of the mainline churches, which seem staid, contained, and tamed to the many who consider their own religious practices, unapproved by traditional religious authorities, to be alive with the spirit. They find their religious community and their religious fields of action in places other than churches—including the marketplace.

Justice Sotomayor claims in her dissent in Wheaton College to have “deep respect for religious faith, for the important and selfless work performed by religious organizations.” Why is the exercise of religion by Hobby Lobby any less deserving of Justice Sotomayor’s, or of the US government’s, respect than the work of the Catholic Hospital Association or the Little Sisters of the Poor? Why should churches and religious orders be obviously and unproblematically exempt, particularly in the aftermath of a series of sexual and financial scandals, while Hobby Lobby is not? Why disdain the representations of the Greens and the Hahns that they consider their businesses to be a religious ministry? Where is it written in the Constitution that only the religious practices of churches or church-related non-profits are entitled to accommodation?

Liberals seem offended by the mixing of religion and profit-making as well as by the obvious misogyny displayed here and elsewhere by a Court that sees the test cases of religious freedom in the protection of a male-only priesthood and the control of women’s reproductive lives.

How did a store become an expression of religion and how did being religious become equated with being conservative on social issues? The politics of religion in the US is a complex story. Religion and business in the US have always been entwined. In the first decades of the country’s existence, as both churches and business worked to institutionalize themselves, they grew up together, many of the same people involved in making the corporate form work for each. Their way of being Christians in the world infused their work as businesses with their Christian piety. By the last third of the nineteenth century, merchants like John Wanamaker saw the department store as a place for Christian action, but the growth of Christian business in the last several decades reveals the ways in which economic activity is increasingly viewed as a field of religious activity. Bethany Moreton’s To Serve God and Walmart: The Making of Christian Free Enterprise, Lake Lambert’s Spirituality, Inc., and Kathryn Lofton’s Oprah: The Gospel of an Icon, all describe this world. This is an old story, of course, as Max Weber explained in The Protestant Ethic and the Spirit of Capitalism. As for gender, Janet Jakobsen and Ann Pellegrini have shown in Love the Sin: Sexual Regulation and the Limits of Religious Tolerance how deeply intertwined are Christian ideas about proper sexual mores and government regulation of the family and of sexuality in the US.

That American religion is involved in business and obsessed with sex is not news. What is surprising is that those who object to this kind of religion continue to hold on to a faith in the idea that religious freedom means protection only for the kind of religion they like, the private, individualized, progressive kind.

The radical nature of RFRA and other post-Smith legislation—including the International Religious Freedom Act (IRFA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), and a host of legislative exemptions from otherwise broadly based legislation—was evident from the beginning. These laws promised a broad deference to religious reasons that had never, in fact, been available under the Supreme Court’s religion clause jurisprudence and that was impossible to implement. They invited a regime under which courts would necessarily have to do the impossible, that is distinguish an exercise of religion, necessarily dividing good religion from bad religion, all the while denying that that was what they were doing, a regime the SmithCourt recognized as unworkable and refused to endorse.

All of this activity, legislative and judicial, has placed a heavy burden on the words religion and religious, words that are constantly repeated in both the majority and dissenting opinions inHobby Lobby and Wheaton College. The adjective “religious” appears on virtually every page of the more than 100 pages of opinions, modifying a wide range of words. Likewise, the word “religion” seems to be both everywhere and nowhere. Is it really possible to distinguish the religious from the non-religious in these cases? Do we have a shared theory of religion that permits such distinctions to be made? Isn’t the religious always mixed with the political and the cultural and the economic? The constant repetition of the adjective seems necessary only in order to reify a notion about which everyone is, in fact, very uncertain.

As one example, Justice Ginsburg announces that, “Religious organizations exist to foster the interests of persons subscribing to the same religious faith.” It is not clear to whom she refers here. As with the other justices in this case and others, her Delphic pronouncements about religion seem to come from the ether. How does she know this? Few who study religion would agree with this statement. Religious organizations, if indeed such a set can be rationally collected, exist for a wide range of purposes and consist of and cater to a diverse group of people. Justice Sotomayor is sputtering mad about the Wheaton College injunction. She says that, while she does not deny the sincerity of its religious belief, the College failed to make a showing that filing a form requesting an exemption is a substantial enough burden to trigger a RFRA claim. Shifting to an argument about substantiality is an effort to avoid challenging the rationality of their religious belief, but that is exactly what she is doing. They say that filing the form is enough to make them complicit with evil. Who is she to say nay without getting into exactly the theological battle she is trying to avoid when she claims to respect them?

The notion that religion exists and can be regulated without being defined is a fiction at the heart of religious freedom protection. Legal fictions—such as the idea that corporations are persons—are, of course, necessary to law. For legal scholars as diverse as Henry Maine and Lon Fuller, the capacity of legal language to finesse the facts could be understood as making legal flexibility and progress possible. The startling unbelievability of legal fictions can also focus our attention on the limits of legal language in a salutary way. Yet legal fictions can be stretched too far. They can become nothing more than lies.

Religion also specializes in fiction. It is not just the corporation that has fictional legal personality. So does the church. Justice Ginsburg objects to free exercise protection being extended to “artificial entities,” referring to corporations, but religious freedom is all about protecting artificial identities. The church is an imagined artificial entity; so are gods and demons. The church is the body of Christ in orthodox Christian theology; like the sovereign, it is the quintessential legal fiction, as we learn from Ernst H. Kantorowicz in The King’s Two Bodies.

We need fictions to live. But when the church and the state went their separate ways—when the church was disestablished—the intimate articulation of political, legal, and religious fictions lost their logic on a national scale. They no longer recognize one another. The legal and religious fictions of religious freedom have become lies designed to extend the life of the impossible idea that church and state can still work together after disestablishment. There is no neutral place from which to distinguish the religious from the non-religious. There is no shared understanding of what religion, big “R” religion, is. Let’s stop talking about big “R” religion.

What remains, as Clifford Geertz reminds us, is for us to work on creating new fictions together, political, legal, and religious:

The primary question . . . now that nobody is leaving anybody else alone and isn’t ever going to, is not whether everything is going to come seamlessly together or whether, contrariwise, we are all going to persist sequestered in our separate prejudices. It is whether human beings are going to be able . . . to imagine principled lives they can practicably lead. (Local Knowledge p. 234)

Judges cannot do this work.

Thank you to Dianne Avery, Constance Furey, Elizabeth Shakman Hurd, Fred Konefsky, and Barry Sullivan for comments on earlier drafts of this essay.

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Winnifred Fallers Sullivan is professor and chair of the Department of Religious Studies and affiliate professor of law at Indiana University Bloomington. She is one of the co-organizers of a Luce Foundation funded project on politics of religious freedom, and guest editor (with Elizabeth Shakman Hurd) of an extensive TIF discussion series on the same topic. Sullivan is the author of The Impossibility of Religious Freedom (Princeton, 2005), and A Ministry of Presence: Chaplaincy, Spiritual Care and the Law (Chicago, 2014); and coeditor, with Robert A. Yelle and Mateo Taussig-Rubbo, of After Secular Law (Stanford, 2011); with Lori Beaman, of Varieties of Religious Establishment; and, with Elizabeth Shakman Hurd, Saba Mahmood, and Peter Danchin, of Politics of Religious Freedom (forthcoming from Chicago, 2015).

To read more about A Ministry of Presence, click here.

This essay has been republished in its entirety from The Immanent Frame, in conjunction with the Social Science Research Council’s program on Religion and the Public Sphere. The original post can be viewed here.