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A review by tmackell
The Impossibility of Religious Freedom by Winnifred Fallers Sullivan
5.0
Oftentimes when it comes to legal cases of religious freedom, the state is choosing the losers and the winners, either directly or indirectly. This is because the law essentializes religion to be only one thing when it is often multiple. The modern legal system, in its empirical, positivist modes of thought, misunderstands religion. Religion is often transient and nonbinary, developed from modes of thought separate from the trajectory of the modern Enlightenment western modes of thought which formed our legal system as we know it today. Importantly, this legal system, as an inherent characteristic of its structure, cannot change itself as fast as religion does. The law must be trans-historical and stable to be applied in various cases while most contemporary theories of religion are by nature specific to a historical context.
Sullivan begins the final chapter of The Impossibility of Religious Freedom with a discussion of two seemingly opposed views which are held by the plaintiffs in the Warner trial. The decidedly religious plaintiffs simultaneously knew that “the objects they assembled” on the graves of their loved ones were “ordinary rocks and plants and cement statues, but they also knew that these things represented all that was holy.” (Sullivan, 142-143) I say that the plaintiffs were “decidedly” religious because their religiosity was ultimately (after much interrogation) declared sincere by Judge Ryskamp (Sullivan, 6). However the plaintiff’s grave decorating was seen as not necessarily required by their respective religious traditions. Therefore, in the court’s eyes, a neutral law that prohibits these practices cannot be a substantial burden on the religious practices of the plaintiffs. The court presumed that religion consists of stable doctrine and law which must be highly textual and able to be referenced. This places religious peoples as passive agents in their traditions. However, the plaintiffs understood their religion to be a formative process, formed by “a mix of motivations and influences, familial, ecclesiological, aesthetic, and political.” (Sullivan, 36) In this sense, the plaintiffs were both formed by their religion, and engaged in forming their religion through their activity in the world. It is not necessarily the symbols involved in these formative processes that religious people engage in that matter, but what people do with them. As Sullivan points out, the historical usage of the Star of David was not investigated at all in the trial, it was “simply accepted as incontrovertibly religious.” (Sullivan, 43) However, the plaintiffs were pushed until they were forced to admit that other objects they placed on graves for religious reasons were not, as objects in and of themselves, holy in any way, such as the marble chips Ms. Warner placed on her husband and son’s graves.
Speech is as much a formative process of one’s religion as any other action. Therefore, by the mere act of bringing their case into the courtroom, the plaintiffs were forced to publicly formulate their religion in real time. They were basically being asked to outline all of the various motivations and influences leading to their actions which they deemed to be religious by an interrogator who only understood legitimate religious influences to be those which are as strictly binding as legal doctrine. “The question at trial was: Did an external authority regard the plaintiffs’ actions as ‘central to’ or ‘necessary to’ their religious traditions? Were the plaintiffs ‘required’ to do what they did? As if the law could take cognizance only of what could be construed as a competing set of norms, norms finding their authority in an alternative but recognizable religio-legal structure.” (Sullivan, 111)
At what point can an action of a religious individual be said to be a religious action or not? This question is one that courts would like to avoid. It is easier for courts to simply determine if an individual’s actions can be seen to be in line with some ordained law. The City understood religion to be like secular law in that it simply involved passive religious subjects fitting their actions to a prescribed set of rules, regulations, and obligations (Sullivan, 36). It is as if the legal system would like all religions to follow the same structure as legal code and contain a canonized set of laws and orders to be followed. In this sense, “modern law wants an essentialized religion.” (Sullivan, 55) However, as most scholars of religion come to believe through their studies: there is no one true experience or expression of religion, and this is a nightmare for the court because then how can religion be regulated? This is ironic considering several religion scholars were called upon as “expert witnesses” in the trial. The court is afraid of religion being an intensely personal or private activity as this is hard to regulate. However, religion is not personal, there is a strong connection to a community, dead and alive, social and emotional. The court is afraid of an individualistic religion because in a way they have forced themselves into that definition, “constitutionally it’s impossible for courts to recognize religious authority as defining orthodox practice and that, therefore, constitutionally courts have to look to the individual. But it doesn’t mean that the individual is not seen in the context of the community” and yet, “a lack of formal authority did not sever all ties between the individual and the norms and practices of religious communities. The Warner plaintiffs, like all persons who are religiously motivated, were profoundly connected to a wider community, dead and alive.” (Sullivan, 87-88)
This does not make religion any easier to regulate though because the question then becomes: Where is this community? What do they say? These are not easy questions to answer, even for ordained religious authorities. After all, “We live increasingly in a world of diaspora religious communities in which all religions are everywhere, in which all religions everywhere are governed by secular legal regimes, and in which all religions everywhere are being reinvented by their adherents to suit new circumstances.” (Sullivan, 3) However these are questions that the plaintiffs were being forced to answer in real time in the courtroom.
Institutional powers exhibit anxiety about the anarchy which an individualistic understanding of religion ostensibly allows for. Sullivan counters that this “religious anarchy” isn’t a real danger. Whatever is meaningful to people is a possibility for thinking about religion. Sullivan sees these lived religious practices as coming out of communal relations. But at the same time, Sullivan doesn’t care about defining religion, making her completely unhelpful to the court system as long as they insist on upholding “religious freedom” as they understand it. Unfortunately, seeing as the courts are unwilling to let their idea of religious freedom go, Sullivan is unhelpful to the plaintiffs as well, and they ultimately lose the trial.
Sullivan sees religion clauses in the law as a real problem. She says people are abused by the system. How people want to define their world and what they want to do is not possible because there are some types of religiosity that are more likely to be recognized by the state than others. Sullivan’s concern with freedom of religion is that it is not free. It doesn’t protect all religion, but only some religion.
Sullivan begins the final chapter of The Impossibility of Religious Freedom with a discussion of two seemingly opposed views which are held by the plaintiffs in the Warner trial. The decidedly religious plaintiffs simultaneously knew that “the objects they assembled” on the graves of their loved ones were “ordinary rocks and plants and cement statues, but they also knew that these things represented all that was holy.” (Sullivan, 142-143) I say that the plaintiffs were “decidedly” religious because their religiosity was ultimately (after much interrogation) declared sincere by Judge Ryskamp (Sullivan, 6). However the plaintiff’s grave decorating was seen as not necessarily required by their respective religious traditions. Therefore, in the court’s eyes, a neutral law that prohibits these practices cannot be a substantial burden on the religious practices of the plaintiffs. The court presumed that religion consists of stable doctrine and law which must be highly textual and able to be referenced. This places religious peoples as passive agents in their traditions. However, the plaintiffs understood their religion to be a formative process, formed by “a mix of motivations and influences, familial, ecclesiological, aesthetic, and political.” (Sullivan, 36) In this sense, the plaintiffs were both formed by their religion, and engaged in forming their religion through their activity in the world. It is not necessarily the symbols involved in these formative processes that religious people engage in that matter, but what people do with them. As Sullivan points out, the historical usage of the Star of David was not investigated at all in the trial, it was “simply accepted as incontrovertibly religious.” (Sullivan, 43) However, the plaintiffs were pushed until they were forced to admit that other objects they placed on graves for religious reasons were not, as objects in and of themselves, holy in any way, such as the marble chips Ms. Warner placed on her husband and son’s graves.
Speech is as much a formative process of one’s religion as any other action. Therefore, by the mere act of bringing their case into the courtroom, the plaintiffs were forced to publicly formulate their religion in real time. They were basically being asked to outline all of the various motivations and influences leading to their actions which they deemed to be religious by an interrogator who only understood legitimate religious influences to be those which are as strictly binding as legal doctrine. “The question at trial was: Did an external authority regard the plaintiffs’ actions as ‘central to’ or ‘necessary to’ their religious traditions? Were the plaintiffs ‘required’ to do what they did? As if the law could take cognizance only of what could be construed as a competing set of norms, norms finding their authority in an alternative but recognizable religio-legal structure.” (Sullivan, 111)
At what point can an action of a religious individual be said to be a religious action or not? This question is one that courts would like to avoid. It is easier for courts to simply determine if an individual’s actions can be seen to be in line with some ordained law. The City understood religion to be like secular law in that it simply involved passive religious subjects fitting their actions to a prescribed set of rules, regulations, and obligations (Sullivan, 36). It is as if the legal system would like all religions to follow the same structure as legal code and contain a canonized set of laws and orders to be followed. In this sense, “modern law wants an essentialized religion.” (Sullivan, 55) However, as most scholars of religion come to believe through their studies: there is no one true experience or expression of religion, and this is a nightmare for the court because then how can religion be regulated? This is ironic considering several religion scholars were called upon as “expert witnesses” in the trial. The court is afraid of religion being an intensely personal or private activity as this is hard to regulate. However, religion is not personal, there is a strong connection to a community, dead and alive, social and emotional. The court is afraid of an individualistic religion because in a way they have forced themselves into that definition, “constitutionally it’s impossible for courts to recognize religious authority as defining orthodox practice and that, therefore, constitutionally courts have to look to the individual. But it doesn’t mean that the individual is not seen in the context of the community” and yet, “a lack of formal authority did not sever all ties between the individual and the norms and practices of religious communities. The Warner plaintiffs, like all persons who are religiously motivated, were profoundly connected to a wider community, dead and alive.” (Sullivan, 87-88)
This does not make religion any easier to regulate though because the question then becomes: Where is this community? What do they say? These are not easy questions to answer, even for ordained religious authorities. After all, “We live increasingly in a world of diaspora religious communities in which all religions are everywhere, in which all religions everywhere are governed by secular legal regimes, and in which all religions everywhere are being reinvented by their adherents to suit new circumstances.” (Sullivan, 3) However these are questions that the plaintiffs were being forced to answer in real time in the courtroom.
Institutional powers exhibit anxiety about the anarchy which an individualistic understanding of religion ostensibly allows for. Sullivan counters that this “religious anarchy” isn’t a real danger. Whatever is meaningful to people is a possibility for thinking about religion. Sullivan sees these lived religious practices as coming out of communal relations. But at the same time, Sullivan doesn’t care about defining religion, making her completely unhelpful to the court system as long as they insist on upholding “religious freedom” as they understand it. Unfortunately, seeing as the courts are unwilling to let their idea of religious freedom go, Sullivan is unhelpful to the plaintiffs as well, and they ultimately lose the trial.
Sullivan sees religion clauses in the law as a real problem. She says people are abused by the system. How people want to define their world and what they want to do is not possible because there are some types of religiosity that are more likely to be recognized by the state than others. Sullivan’s concern with freedom of religion is that it is not free. It doesn’t protect all religion, but only some religion.