When I first read the first chapter of Winnifred Sullivan’s The Impossibility of Religion Freedom I knew I had to check out the full book at some point (see Randall’s extensive commentary). Well, I just did, it’s only ~150 pages and the prose isn’t excessively legalistic. The specific core of the book is the Richard Warner vs. City of Boca Raton case and its reference to the Florida version of the Religious Freedom Restoration Act, but the broader context is the relationship between the state and religion in a pluralistic society. Roughly, Sullivan makes the case that by the very act of specifically protecting “religious” freedom the state arbitrates exactly what is, and isn’t, religious, and so violates the original intent of the state to remain neutral.
The details of the case in question are rather banal. Like many cities across the nation Boca Raton has specific regulations of how cementaries should be maintained, and over a period of several years a group of families created ad hoc shrines on their loved ones’ grave sites. This was in violation of a local statute which stipulated that one should not place obstrusive objects on the site. The reality is that the city generally did not enforce the law, but a local survey suggested to the City Council that most individuals who frequented the cemetary tended to favor the provision. In short, at some point the ordinance was enforced (though Sullivan states that it doesn’t seem to be enforced anymore), prompting about a dozen individuals to file suit under the Religious Freedom Restoration Act.
Legal details do not interest me, and I doubt I could regurgitate the specifics of the federal and state guidelines that are operative as to the enforcement of the aforementioned law. For me, the most compelling portion of Sullivan’s narrative was when she illustrated exactly how ludicrous some of the exchanges were. Here is an exchange between the lawyer for the city and a plantiff:
Q: The marble chips that are there [the grave site], do they have any independent religious significance to your?
A: Independently, no. They serve a religious purpose for me. They are not, marble chips in and of themselves and are not holy in any way.
Q: Does the header have any independent religious significance?
Q: And the edging stones have no independent religious significance?
A: Independently, no.
In pointing out the extent to which the city lawyer began decomposing the exact details of religious practice, I think Sullivan was expressing her sympathy with the plantiffs (she was an expert witness for them). Later the plantiffs brought in an Eastern Orthodox priest (of Anglo-Irish ethnic origin, he was a convert from Roman Catholicism) to ruminate on the specifics of Christian practice in a historical context. And so begins an exchange where the lawyers and the priest engage as to whether scripture and Christian tradition allows a cross to be placed vertically or horizontally, whether both, either, or neither, are acceptable in the various forms of Christianity. An Orthodox rabbi comes to testify as to Jewish traditions and law, and the judge, of Calvinist background, at one point begins to dispute aspects of Biblical interpretation (and suggests that if the Torah is used as a justification, that is acceptable, but the Talmud is too subject to historical influences).
As for the plantiffs, their own religious practice and beliefs came into question. It was clear that many of the Roman Catholics, of Cuban or Polish origin, held to a form of the faith that was not assimilated toward American Catholic norms. When called on to justify their funerary practices they had to appeal to family tradition and secondarily fallaciously extracted from the New Testament passages that didn’t exist. Jewish plantiffs who tried to make the case for their own religious views had to explain why they didn’t attend synagogue (too expensive) and elaborate on the details of difference between Jewish sects in the United States (the man was an English immigrant, so he had a hard time distinguishing Reform, Conservative and Orthodox). Additionally there was a great deal of time spent emphasizing the obvious importance of the Star of David to Judaism, but Sullivan points out that this symbol has become omnipresent as a outward representation of Jewish identity since 19th century Zionism. The City of Boca Raton was attempting to establish that the practices that the plantiffs held were religious were “personal,” and they used as a standard the elite codified forms of the religion that they plantiffs nominally espoused to make that case.
At this point you can see where Sullivan’s book is going, mixing a loosely worded and expansive law with a religiously plural society where clerical institutions have little arbitrative power is a recipe for confusion. Moving it a step further Sullivan offers that international agencies also need to be cautious in expanding the right to religious freedom in an unqualified manner.
I suspect most readers can connect the dots here. People may accept a religious precept which implies behavior in contradiction with the laws of the state. Additionally, religious precepts of different religions also often conflict and jockey for primacy in the public space. As an unbeliever it does irritate to some extent that by the very nature of an action being condoned by a religion, that action is often acceptable, or at least within the field of play, when in a non-religious context there would be no argument. For example, consider this practice:
The practice is known as oral suction [redacted]: after removing the foreskin of the penis [of an infant], the practitioner [redacted] sucks the blood from the wound to clean it.
Now, with the full context:
The practice is known as oral suction, or in Hebrew, metzitzah b’peh: after removing the foreskin of the penis, the practitioner, or mohel, sucks the blood from the wound to clean it.
There is an implicit operation, (act or belief) X (religion) = lower threshold of outrage and incredulity. In previous times, and different places, the operation is more like so, (act or belief) X (my religion) = lower threshold of outrage and incredulity. For some Westerners the operation has been transformed in the following fashion: (act or belief) X (!my culture) = lower threshold of outrage and incredulity. An an unbeliever I am not happy about this situation, but, as a realist I accept it as the way the world works. When the Mongol hordes were sweeping across Eurasia their leaders explicitly gave religious officials protection. Since the Mongols during this period did not adhere to a specific religious tradition they were simply currying the favor of the gods of the conquered nations, but, no doubt there was a utilitarian benefit in exempting the pr
iests and turning them to their purposes when it came to mollifying and controlling a restless population.
Sullivan does a good job placing the peculiarity of American elite religion in its broad historical context. She contends that after the Reformation there was a process of deinstitutionalization, decentralization and individuation of religious belief and expression which has reached its apotheosis in the United States. Not only did the ensuing pluralism force the disestablishment of the church from the state in this nation, but the ever expanding range of beliefs and practices began to open wide exactly what were and weren’t religious expressions. But I think she leaves the specifically American context a little thin on the ground, because in 1776 we were a very different nation than we are today.
In 1850 Archbishop of New York, John Hughes, stated:
…all Pagan nations, and all Protestant nations, even England with her proud Parliament…Everybody should know that we have for our mission to convert the world-including the inhabitants of the United States-the people of the cities, and the people of the country, the Officers of the Navy and the Marines, commander of the Army, and the legislatures, the Senate, the Cabinent, the President and all.
(source, American Catholic)
Though there have been many Protestant denominations, and later Jewish ones, who have risen and fallen in this nation, for much of American history there has been a special dynamic, or tension, with the Roman Catholic Church. It wasn’t always so, the bishop John Carroll in the early 19th century presided over an American Church where foreign influences were minimal and local control was paramount. In the 1830s Congress even had a Roman Catholic chaplain, the very last one we’ve had. Carroll would speak of the Christian Catholic Church and was prominently ecumenical.
This changed in the 1840s and 1850s. There were many reasons. Part of it was the massive wave of Irish and German Catholic immigration, part of it was the turn against liberal nation-states on the part of the Vatican, and part of it was the emigre community of foreign priests and intellectuals who arrived in 1848 in the wake of liberal revolutions, failed and successful, who were skeptical of republics and liberal democracies.
In 1859 Thomas Whall, a pupil at the Elliott School in Boston, was beaten for refusing to read from the King James Bible (source Catholicism and American Freedom). A Roman Catholic, Whall was encouraged by a newly arrived arrived Jesuit who were agitating for the separation of his flock from Protestant society. Over time Roman Catholics were crucial in spearheading the move toward a more ecumenical religious program within the public schools (i.e., much of the nation no longer prayed Protestant prayers or read Protestant Bibles), even though eventually a great number of Catholic children were enrolled in the parochial school system. This assertion of independence and distinctiveness by the Roman Catholic Church elicited the nativism and Known Nothingism that was a hallmark of a strain of American thought deep into the 20th century.
Yet by the end of the 20th century there are surveys which suggest that young Catholics are skeptical about transubstantiation, charismatic Catholics are rejecting the institution of the Church while lay Catholics are appearing on television emphasizing that the sexual abuse scandal has had some effect on them, but they still value their “relationship to Jesus Christ” more than the Church. Of course, rejection of transubstantiation, the Church and acceptance of a direct relationship with Jesus Christ are hallmarks of Protestantism!
In Sullivan’s book she offers that legal scholars are losing the forest from the trees, that religion as it is being lived amongst the populace is becoming a far more salient factor in our culture than the codified elite forms of religion that are familiar to intellectuals and easily integrated into rationalized frameworks. American Roman Catholics might not be what you would expect them to be based on the catechism of their church, but the late Pope John Paul II was also almost worshipped by devout Protestants in this country. Evangelical Protestants whose ancestors turned their backs on the imagery and pageantry of Roman Catholicism nevertheless flocked to Mel Gibson’s movie.
On a basic level believers have I think always been far more similar to each other than the rational systems propounded by their clerics would have implied. With the decline in institutionalized religion this basal substrate is now coming to the fore, and a peculiar paradox of revived fundamentalism but operational ecumenicalism is making itself felt because conflicting beliefs become irrelevant when reflection is secondary to experience and emotion. But once reflection and centralized clerical codification become secondary or even marginal, the clear formalized relationship of a the polity to religions becomes impossible because legal forms and semantic precision can not map to the decentralized religious cults, sects and organizations that are proliferating throughout this nation. Couple that with the rise in a Post Modern relativist conception of culture, a tacit acceptance of “different ways,” and the system needs to start facing its internal paradoxes.
Which brings me to my title, “A prayer for the Emperor.” Church-state separation as we know it today is something of a peculiar thing. As Westerners we are well aware of the established churches of Europe, whether it be Anglicanism in England or Lutheranism in Scandinavia. In Germany some churches are privileged in that the state can collect voluntary tax from members (a coalition of Protestant churches and the Roman Catholic Church). But these models are presupposed on an ideal of an exclusivist and stand alone system of beliefs and practices. In the Muslim world a form of Islam, whether it be Sunni or Shia, plays the same role. Though Malaysia is a religiously pluralistic nation, the state takes a special interest in Islam and subsidizes the building of mosques.
But I think there are other models out there. The extent of religious pluralism in the United States is mind-boggling in comparison to much of Europe, where dominant religious institutions are embedded within the culture and often have associations with the state. Rather than modern Europe I think a better future model for the United States might be pagan Rome or Imperial China. In these states there really wasn’t church-state separation, there was a public piety, and a mass of beliefs in syncretistic flux. Occassionally particular sects would cause political problems and the state would repress them, but in general beliefs were personal affairs so long as public order was maintained. Additionally, neither of these cultures was characterized by overwhelmingly dominant exclusive creeds with widespread institutional networks. The decentralized megachurches, the rise of para-church groups and the operationally expansive ecumenicalism that is becoming normative in the United States I think resembles this. People can not only “chuch shop,” but cult formation is an ongoing process unmediated by political elites.
Because of their diversity, ultimately I suspect the religi
ous orders and groups have to be either subordinate or oppositional to the state. This was the trend in ancient Rome or China. In contrast, Westerners have had a model where one a powerful exclusive religious institution strikes hard bargains with states as if they were equals (the Roman Catholic Church). Or, in nations like Norway, the national church has been absorbed by the state so the two are coterminus. The diffusion of religious power to innumerable bodies will inevitably result in the pulling back of the strong reverential stance that American politicians right now seem to take to all religions, so long as they aren’t so deviant as to practice animal sacrifice. At least that’s what I’d bet on.