Category Archives: University of Ottawa

The Impossibility of Religious Freedom by Winnifred Fallers Sullivan: A Review

07 Tuesday Jun 2016

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Winnifred Sullivan’s The Impossibility of Religious Freedom addresses her involvement in and observations of the legal case study of Warner v. Boca Raton concerning the decoration of gravesites in a Boca Raton cemetery. The author is both an academic and a lawyer, and she probes the case from a predominantly sociological viewpoint rather than by articulating a legal argument.

The highlight of this book, in my opinion, is that it is so rich with detail. The photos, the uncomplicated narrative and the comprehensiveness of information tell a complete story well-presented. Sullivan makes the characters come to life; I was moved by the grief of her diverse interviewees who were being treated so pitilessly by the cemetery authorities. It is a very interesting and important book. The Impossibility of Religious Freedom is an account that was well worth putting together.

That said, the author could have developed the theoretical analysis further for a more instructive conclusion. She is saying that “Freedom of Religion” is impossible, but, problematically, never clarifies what exactly “Freedom of Religion” is. In the case of Jacobellis v. Ohio (1964), Justice Potter Stewart writes “that “hard-core pornography” is hard to define, but that “I know it when I see it”. Similar approaches have been made in defining the Freedom of Religion in law. Phillip Griego notes that the Sun-Worshipping Atheism case before the Fair Employment and Housing Act was dismissed for similar reasons. Without giving any clear explanations, Sullivan seems to be relying on the ‘I’ll know it when I see it’ approach, which is the cause of the ‘impossibility’ she critiques in the book. Applying a critical theory approach would yield a conclusion other than “this is impossible”.

‘Freedom of religion’ is protected by law; it stands trial on a regular basis, proving it not to be “impossible”. Every day in America, the country featured in The Impossibility of Religious Freedom, citizens (and corporations like Hobby Lobby) are operationalizing laws concerning Freedom of Religion to their benefit. In March 2016, North Carolina passed a bill that requires gender-segregated washrooms and seven other states are discussing following suit, in April 2016, Tennessee legislators passed a bill to allow therapists and counselors to abstain from treating people they think are gay, and in April 2016 Mississippi signed a Religious Freedom bill into law that allows businesses to discriminate against LGBT people. Religious Freedom works. What Sullivan has not distinctly explained in her book is who is producing the discursive norms of ‘religion’ protected by Religious Freedom, who is excluded or marginalized by this ‘domination of knowledge production’, and how the totalizing category of ‘religion’ is produced to protect particular interests—in short, she has not pointed to who is benefitting from this arrangement. The author sees that unclear definitions of religion lead to discrepancies between sociologists and lawyers, but where does that take us in terms of theoretical understanding or social justice? The Warner v. Boca Raton case study provides the opportunity to deconstruct the colonial, sexist, homophobic and coercive aspects of Freedom of Religion legislation, but Sullivan stops at “impossible”. (This is not to devalue her overall critique of ‘religion’ as a legal category. Such critiques are incredibly valuable).

Throughout the book, Sullivan notes that judges, lawyers and legal professionals of various kinds are puzzled and annoyed by her need to explain that there are innumerable definitions of religion, and these are all highly contested. They are confused that she can’t describe what she is an expert of, or what she studies. The effect is that her position as an expert witness is undermined, and she is unable to use her knowledge and position to bring justice to people in need. This is not her fault, but it points to a serious problem which Religious Studies scholars hoping to be public intellectuals need to address. The Religious Studies scholars in the book may be a confused bunch, but the theologians know exactly who they are. A rabbi and a priest are also called to be expert witnesses in Warner v. Boca Raton, and they had great confidence in their abilities as authorities.

In Boca Raton, Sullivan could have stood up for the rights of individuals in the face of corporate interest, she could have sparked a debate about private expression and public sterility, or she could have embarked on a fascinating contemporary analysis of burial culture and the legal context. In the book, Sullivan places great emphasis on her background in law, and so she could have used this case as the foundation of a rectification of the legal system to respond to the “impossibilities” which she is identifying. In the end, after the discussion about the indefinability of religion, Sullivan concludes that if people say that what they are doing is religion, they should be allowed to do it as long as it ‘looks like’ religion. There is nothing particularly harmful in this conclusion in this case, but as a qualified specialist the potential to do more was there. For example, Sullivan asks “[c]an “lived religion” ever be protected by laws guaranteeing religious freedom?”. If she is engaged in challenging the construction of religion in freedom of religion laws, perhaps a better question would be “can the freedom of expression protect the rights of these people to decorate graves?” That might be a more productive line of questioning.

Another important legal take on ‘religion clauses’ is Micah Schwartzman’s thorough article “What If Religion Isn’t Special?”, referring to ‘religion’ as a special entity within law. The implications of Schwartzman’s work are that ‘religion clauses’ foster divisions rather that solidarity, encouraging people to fight for small “accommodations” for their in-group instead of guaranteeing rights for society at large through freedom of assembly and freedom of speech legislation.

A fear that is sometimes voiced by my colleagues in Freedom of Religion discussions is that while the construction is problematic, something will be lost, or something important and indescribable will be left vulnerable if the problematic Freedom of Religion were not there. As expert witnesses, scholars need not convince lawmakers that religion is some enigmatic confusing thing they’ll just never quite understand; they need to lend their knowledge to constructive ways of ensuring that the behaviours classified as ‘religious’ that are worth protecting (or at the very least worth studying) are protected by other means.

The Impossibility of Religious Freedom is an interesting and insightful book which stimulates great thought and debate. It has potential, perhaps in a supplementary chapter with reference to Schwartzman’s suggestions, to push the theory further, but it provides a great introduction to the difficulties and challenges associated with Freedom of Religion in law.

“Becoming Recognizable: Postcolonial Independence and the Reification of Religion” – comments on Maria Birnbaum’s thesis

19 Tuesday May 2015

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I just finished reading “Becoming Recognizable: Postcolonial Independence and the Reification of Religion,” an outstanding doctoral thesis by Maria Birnbaum, who recently completed graduate work in the Department of Political and Social Sciences at the European University Institute in Florence. Birnbaum’s work will be of interest to anyone engaged in analysis and critique of religion as a category of public policy because:

  1. it advances theorizing about how religion becomes constructed in the discourse of international relations about the recognition of states and because
  2. it illustrates why such theorizing matters in the practical functioning of international statecraft.

I expect to cite Birnbaum in my work and will recommend her dissertation to graduate students and colleagues.

Before proceeding any further with a short summary of the thesis and a brief discussion of how it relates to my project, I want to indicate a significant lacuna in what Birnbaum has written: with the exception of works by Elizabeth Shakman Hurd, there is very little mention of current critiques of the depiction and use of religion in IR. Most notably, Birnbaum makes no reference to Timothy Fitzgerald’s 2011 benchmark book, Religion and Politics in International Relations: The Modern Myth (Continuum). This is unfortunate since Fitzgerald’s substantial interrogation of themes and authors Birnbaum engages in her text would enrich her own analysis considerably. I hope that she will remedy this omission as she proceeds with publication of her important work.

The thesis is a clear and concisely written argument for practicing what Birnbaum calls “genealogical sensitivity” in international relations theory (IR). She uncovers major flaws in the work of Daniel Philpott, Scott Thomas and Jurgen Habermas – three authorities in IR who argue for the recognition of religion in global politics. Birnbaum shows although religion is assumed to be an “already present and intelligible” phenomenon that is a powerful determinant of identity and agency, none of the three can identify what it is that ought to be recognized. Furthermore, she argues that the process of recognition they support works to create that which it purports to be acknowledging. She claims that, in general, IR theory tends to be unaware of the contingencies of history, economics and power relations that underlie what gets labeled and institutionalized as ‘religion.’ Thus, Philpott, Thomas and Habermas exemplify what Birnbaum sees as forgetfulness and naivete in IR – forgetfulness (her word) about the processes of history that have brought about social groupings and classifications and naivete (my word) about how the very rhetoric of difference and particularity functions to produce the groups that governments aspire to manage.

Birnbaum condenses a great deal of complex theory and analysis in her text. Philosophical and political discussions pertaining to “being and becoming” are summarized and evaluated. She favors an approach that would balance the necessity of stabilizing social and governmental entities – i. e. “being” – with attentiveness to constant change that requires flexibility of boundaries and group definition – i.e. “becoming.” She reviews debates and literature related to the foundation of Pakistan as a Muslim homeland and Israel as a Jewish state to show how religion emerged during the twentieth century dissolution of the British Empire as a “taken-for-granted juridical, cultural and political category” that affected the lives and deaths of millions. Her moving conclusion restates her argument that religion ought not to be used as a stand-alone analytic category because such a practice represses and thus disguises what is at issue in the struggles for power and resources that continue to fuel global conflicts.

Presently, I am at work on developing theory about how the category of religion is used strategically in technologies of statecraft to at times support existing orders of authority and at other times to undermine them. I argue that ‘religion’ has emerged rather recently as a placeholder for conquered and marginalized groups that are allowed to exist with some degree of cohesion within the jurisdictions of dominant sovereignties. The dominated group is allowed a circumscribed degree of autonomy as a religion if it agrees to abide by certain limitations chiefly in regard to a renunciation of the forms of violence – i.e. police and military functions – that the ascendant state reserves for itself. Thus, I understand religions to operate as the weakened vestiges of former states within fully functioning states. However, the very fact that religions are accorded some degree of sovereignty within dominant governments gives them a platform on which to strive for increased power and recognition. Religions are always restive to some degree and therefore behave like once and future states. Likewise governments habitually aggrandize religions by invoking theistic traditions as honored predecessors in order to glorify authority wielded in the here and now with a mantle of mystified and ancient grandeur. Examples abound in the preambles of contemporary legal and quasi-legal documents that make vague reference to a divine power as the ultimate justification for the present governing order. Because such theistic antecedents are almost always male, such contrived practices of nostalgia result in the shoring up of patriarchal ruling structures that characterize current governing regimes.

The thrust of the theory I am proposing undermines difference between so-called secular and religious orders of governance. Instead, I posit the existence of two unequal registers of government that eye one another with alternating degrees of competition and collusion, that jockey each other for domains of influence and that make use of one another to maintain and increase power.

I am developing such arguments along with several colleagues in a series of essays, edited collections and a monograph in progress. Religion as a Category of Governance and Sovereignty, edited with Trevor Stack and Timothy Fitzgerald, will to appear this year from Brill. My essay in the volume, titled “The Category of Religion in the Technology of Governance: An Argument for Understanding Religions as Vestigial States” is an overview of my position.)

By showing how theorists in international relations articulate ideology that first reifies religions under the guise of recognition and then works to create and solidify contemporary state apparatuses to manage what is imagined as already there, Birnbaum enhances understanding of how ‘religion’ is linked to processes of governmentality. She also documents a sinister side to the whole business by pointing out some of the ways in which reified religions have become carriers of rigid and policed identities that exacerbate inter-group tensions and undermine progressive politics. Her work contributes to a growing and urgently necessary body of theory that is unraveling confusions propagated in the narratives of government in which we are all enmeshed.

NB This blog was first published on the NAASR site, 11.5.15.

Should Religious Studies Scholars Provide Expert Opinions in Court Cases?

05 Monday May 2014

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When contention arises in the courtroom, it is a common practice in many countries to call upon experts to help validate or discredit arguments, made either by the defendant or by the plaintiff. These experts, often professionals or scholars, can use the specialised knowledge gained in their field to clarify any points that may otherwise be misunderstood by the general public or the jury. In the case of conflicts dealing with religious freedom, a priest or other religious official may be invited to offer his or her expertise, but it is often the scholar of religious studies that is called upon. It is he or she that is responsible for provide a balanced, objective viewpoint on a variety of religious practices and beliefs, and to decide whether or not the practices or beliefs in question can be said to be “sincerely religious”.

While it is fairly standard to use scholars’ statements as expert opinions in court, I would like to suggest that this practice produces as many issues as it does advantages. Religious studies scholars can provide an unbiased viewpoint on matters relating to religion, but in doing so they are also participating in a system that reinforces the existence of “religion” as a sui generis category. They are made to speak about “religion” in an authoritative way, which in turn leads the general public to believe that “religion” is a benign descriptive label applied logically to groups of the same genus and not, as critical religionists argue, a historically and culturally specific term with political connotations and a term whose definition is still contested. However, the testimony of scholars of religious studies still serves a distinct and equalising purpose, and prevents the jury from being swayed by inaccurate stereotypes and unhelpful assumptions about particular traditions.

The issues that arise when a scholar of religious studies gives an expert opinion in a legal setting are varied. First, the audience are not specialists, and so the scholar must generalise and use “religion” in a general sense. This lends a notion of stability to the category of “religion”, and reinforces the idea that certain groups, practices and beliefs belong in the category, while others should be excluded. Second, validating whether or not something is or is not “religion” not only serves to reinforce the category in an abstract sense, but also has significant repercussions for those groups whose practices are dismissed as “not religious” and therefore cannot be protected by human rights provisions, such as that of Section 2(a) of the Canadian Charter of Rights and Freedoms.

In addition, the reliance on expert opinions in matters of “religion” implies that the scholar is more qualified to define a practice or belief as “religious” than the practitioner themselves, when the matter of “religion” is otherwise viewed as a personal and subjective decision by the court. The Supreme Court of Canada made a statement to this effect in the landmark case Syndicat Northcrest v. Anselem (2004):

The State is in no position to be, nor should it become, the arbiter of religious dogma. Although a court is not qualified to judicially interpret and determine the content of a subjective understanding of a religious requirement, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue. Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimant’s testimony, as well as an analysis of whether the alleged belief is consistent with his or her current religious practices. Since the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but what the claimant views these personal religious “obligations” to be, it is inappropriate to require expert opinions.

Curiously, although the court in Anselem claims that “it is inappropriate to require expert opinions”, expert opinions are still sought out in the very same case. This is because, as religious studies scholar and former lawyer Dr Lori Beaman writes in her book Defining Harm: Religious Freedom and the Limits of the Law (UBC Press, 2008), “[t]he expert voice is heard in religion… and is perhaps most visibly hegemonic in the collusion between religion and law.” (48)  It is these experts that “act as gatekeepers in the discursive construction of religion”, determining the boundaries between legitimate and illegitimate religion. (48) It has been historically deemed important by courts in Canada to determine that a “religious” belief is sincere, and not capricious or artificial. Therefore, the voice of the scholar of religious studies has the power to legitimise particular groups as “truly religious”; yet this decision is made with an illusion of objectivity, using a contested and unstable category as its basis.

Expert opinions are, however, still useful in the case of practices that while sincere, are easily misunderstood or seen as strange. This is often the case with new religious movements or syncretic religions. I will use another Canadian case to demonstrate this advantage. In the Supreme Court of Ontario case R v Welsh (2007), the court attempts to determine whether or not Obeah (a collection of folk practices, religion and sorcery originating in West Africa and flourishing in the Caribbean) can be considered a belief system or “religion”. The entire case rests on this decision, as the claimant can only argue that the actions of the defendant infringed on their right to freedom of religion if their practices are validated as “religion”. Helpfully, court aligns itself with the stance in Anselem, and sees itself as “reject[ing] a narrow, overly-precise definition of religion in favour of a broad perspective that could conceivably capture an array of beliefs that, like Obeah, fall outside of well-recognized religious boundaries.” (Para 28) The court recognizes, with the help of expert opinions, that “Obeah is a religious belief system that meets the Supreme Court definition of such in [Anselem] and thus warrants s.2(a) protection.” (Para 29)

In light of this information, should Religious Studies scholars provide expert opinions in court cases relating to religious freedom? I am still unsure what is to be done with the practice. While the instability of the category of “religion” gives the scholar (and thus the court) the ability to validate or dismiss practices based on a contested definition, the use of expert opinions can also be (and often is) beneficial to lesser-known traditions, and even to groups who regularly experience discrimination or prejudice, such as Islam. To cease the practice would leave these groups in a vulnerable position, but to continue advising the court under the illusion of objectivity may lead to misguided decisions. The issue is complex and multi-faceted, and it is my intention to treat the topic more extensively in my further research.

Conference Report: Women in Secularism 2

07 Tuesday Jan 2014

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Washington, D. C., May 17-19, 2013

Washington, D. C., May 17-19, 2013

Washington, D. C., May 17-19, 2013

October 2013:
Note on Critical Religion: It is my assumption that scholars engaged in critical religion are essentially the atheists, feminists and de-colonists in the field of Religious Studies. I had dinner with a group of Religious Studies majors a few nights ago, and I was interested and somewhat disappointed to note that they generally defined ‘the religious’ as those who self-identified in that way. While Religious Studies departments can be replete with scholars drawing lines around ‘religious’ art or ‘religious’ clothes, implicitly using the adjective as an analytical category rather than as data itself, to my understanding, ‘Critical Religion’ particularly is a meta-religion-studies, looking at what people are calling ‘religion’, who is employing this label and for what reasons they are doing so. Critical Religion means examining the modern social attitude called ‘religious’, rather than apologetically calling human behaviour ‘religious phenomena’, something which does not exist, so naturally it is impossible to track or even define. Feminists have challenged and reconstructed history with a place for women within it, and de-colonists have given voice to a historically silent subaltern perspective. A large and contemporary body of work in Religious Studies is in many ways surprisingly still engaged in writing histories as (patriarchal, colonizing) Cultural Christians. Feminist and de-colonial theory, devoted to revealing and questioning unexamined systems of power, are the avenues which lead to Critical Religion. This seems to produce atheism, which is why the Women in Secularism conference series is relevant to Critical Religionists.

Atheism & Feminism

On May 17, 2013, some 50 core participants gathered at the Downtown Marriott Centre in Washington D. C. for the second annual conference about women’s involvement in secular movements. Up to 200 others attended for the keynote speakers. The conference was organized by the Centre For Inquiry, a not-for-profit organization which mobilizes on a variety of issues surrounding ‘secular’ concerns, such as scientific education in public schools, grief services for nonbelievers, and the demystification and de-vilification of all things contraceptive.

Over the course of the weekend, women engaged in atheist feminist activism had the opportunity to meet and discuss their work. Some women were best-selling authors, others scientists in the academy, and others were leaders in support groups within their communities. It is important to note that most of these women were and are actively engaged in journalistic activism via online blogs, Twitter, and other social media. (For a list of all the speakers and their lectures, click here.)

Toxic Religion and Toxic Patriarchy are the Same

Many of the activist-oriented conference speakers and panelists encouraged a coalition between the feminist movements and the secular ones, both to get more feminists to be atheists and to make the secular movement less elitist and oppressive. Essentially the secularists were engaged in convincing the feminists of the toxicity of religion and religion’s interference with the state, and the feminists were convincing the secularists that the fight to empower women is the keystone in reducing religion’s political influence. The result was feminists getting equipped with a more detailed understanding of the role of Christianity and Islam and patriarchy, and the secularists gaining a deeper appreciation for the role of feminist struggles in working towards secularism. Secularists and feminists were engaged in a process of seeing the dismantling of toxic masculinity and the dismantling of toxic religion as the same endeavour.

CFI Washington D. C.’s president and conference organizer Melody Hensley said that “issues of secular movements are issues of women’s safety and freedom.” The anti-feminist thrust of the predominant atheist movements, led by Richard Dawkins and others, suggests this is not a universal notion. Atheist groups consisting largely of wealthy, educated white males are focused on the science of anti-God-ness. Dawkins calls himself a “cultural Christian”, supporting ‘traditional marriage’ and other Christian constructions while intent on disproving the existence of an all-powerful God, male or otherwise. It follows that Dawkins supports ‘traditional’ gender roles and the idea of the father as head of the household. In this way, atheist movements may protect and inscribe oppression of women; they can erode Grand Narratives in one way, and perpetuate them in others. While I see feminism and atheism as part of the same project, it troubles me that this Dawkinsian atheism, disproving God with science, could potentially be the extent to which the secular movement goes. It is incredibly important to demonstrate the connection between the cultural institutions of Christianity and the cultural institutions of patriarchy. As Kathlyn Pollitt said, “religious texts are the rulebooks of misogyny.” Radio personality Sarah Moglia pointed out that statistically speaking, all social movements that do not reach the working classes (and women make up 70% of the world’s poor) are doomed to fail as they do not reach the institutionalization phase. The conference made clear that secularism as a social movement will not take root until it is inclusive, pervasive and skeptical, deeply penetrating not only the imaginary god but the system which both creates and is created by notions of it.

Another important discussion at this conference was that of nomenclature. There were many discussions and disagreements about what the movement should be called, how people should self-identify, and other issues which can be (and were) paralleled to the gay rights movement. I got the sense generally that although there were a few people who disliked the ‘secular’ title and preferred out-and-out atheist, there was an acceptance of allies in the movement. It was noted that as the term ‘feminist’ often precipitates a strong counter-reaction, so the word ‘atheist’ denotes criticism of the hegemonic paradigm and can’t be softened. This makes me think of Richard Cimino’s definition of atheism, which is “an oppositional identity in a culture of theism.” This oppositional identity creates many apologists, and potential allies of the secular (and women’s liberation) movements often focus on religion as a notion of ‘The Good’, or the positive effects of religions rather than the endemic oppression they inscribe. There has also been a great deal of ‘historical’ focus on religious persecution and religious freedom, and church-related abuses and violence are called ‘situational’, or ‘representative of the times’. Pollitt remarked that one need only read the Bible itself for an account of human rights abuses. The pervasive desire to imagine religion as ‘The Good’ results in a social forgetfulness that obscures the modern and political projects deploying God in state and in law. God went on the money and in the Pledge in the United States in the 1950s, and in contrast, France separated church and state in 1905. Investing the state with God-the-Father, and pretending he was always there is both anachronistic and political. Speaker and writer Jennifer Hecht notes that the feminist atheist movement needs to “establish a long history of secular women because the Christian world can be overwhelming,” and that “we have to be the ones to cultivate this memory.” When asked what the future would look like if atheist and feminist movements were successful, Pollitt responded that it would look as though atheism and feminism had always been popular. Whether or not that is the case remains to be seen, but every story told and every voice that speaks moves the discourse forward.

Critical Religion

One of the most interesting parts of this conference was that scholars of Religious Studies were not invited. The doctors of Science, Political Studies, History and Women’s Studies seemed to recognize that much of the work in Religious Studies, while likely well-intentioned, is apologetic and somewhat evangelical. Ultimately, Religious Studies scholars seem to be more committed to their subjects of study than to human rights, or perhaps conventional Religious Studies departments do not offer the anti-oppressive theoretical education which has become typical in some Social Sciences.

Critical Religionists are often adept at pointing out the flaws of our peers, but the work which is crucial to developing the movement lies in constructing better theoretical frameworks than the ones which exist currently in the field of Religious Studies. Work like Goldenberg’s Vestigial State Theory move beyond “standing in the conceptual space carved out by theistic religion” (Sam Harris, 2007). Indeed, scholars of religion are only beginning to have the language with which to describe “vestigial states called ‘religion’”. Feminist and post-colonial academic and activist circles are a fantastic place to see these developing frameworks in action; these are the frameworks that Critical Religion needs.

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Videos of the entire conference can be found here.

[Editor’s note: This article was modified on 11 April 2016 at the author’s request]

“Overt and Conspicuous”: Religion and the Charter of Québec Values

18 Monday Nov 2013

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Religious freedom has become a a hot topic in the world of Canadian law again this autumn, as the Parti Québécois presented a new bill, Bill 60, which seeks to enact the “Charter of Québec Values”. The proposed charter aims to prohibit the wearing of “overt and conspicuous” religious symbols by government officials and public servants. The rumoured charter was widely discussed across Canadian news outlets throughout September and October, and was finally tabled in front of the Québec legislature on November 7th, 2013 as the “Charter of Québec Secularism”. The proposed new law would amend the Québec Charter of Human Rights and Freedoms in an attempt to prevent religious symbols to form part of the public sphere; this echoes the measures of state secularism eschewed by other governments, such as that of France.

The bill was the object of much controversy as the stipulations of the charter suggest “common values” that target the removal of hijab, yarmulkes and turbans for the purposes of equality. Below are the widely-circulated images which became representative of the guidelines proposed by Bill 60:

Figure 1: Types of permitted religious symbols.

Figure 2: Prohibited religious symbols.

According to ReligionNews.com, the charter “would prohibit public employees from wearing large crosses and crucifixes, Islamic headscarves, Sikh turbans and Jewish yarmulkes as a way to establish ‘religious neutrality’ in public. The prohibitions would apply to civil servants, teachers, law enforcement officers, firefighters, doctors, nurses and public day care employees. Elected officials would be exempt.” Thus, anyone seeking to serve in the public service would be required to disregard their own personal religious practices if these could be interpreted as “overt”.

While media reports and online discussions have concentrated on the possibility of these guidelines being a disguise for racist or xenophobic motivations, I believe they are missing the essential dilemma that characterizes the problems with Bill 60. The proposed measures aim to limit the infringement of citizens’ religious freedoms by preventing others from imposing their beliefs by virtue of wearing visible symbols. However, as I have written before, there is no official agreement in Canadian federal or provincial law about what constitutes a “religious symbol”. Freedom of religion has been discussed in Canadian human rights law since the 1950s and no unanimous decision about what constitutes “religion” has been reached. Therefore, the allegations that the guidelines provided by Bill 60 are racist or targeted toward minority groups skim the surface of a deeper, more troubling realization: that perhaps there is no such thing as stable concepts of “religion” and “secular”, and that the insistence that there is such a distinction leaves room for deeply troubling lines to be drawn arbitrarily.

The realization of the lack of objective, clear-cut categories and its consequences is at the heart of work done by scholars of critical religion. My recently completed Master’s dissertation, as well my first blog post for the Critical Religion Association, have dealt with the consequences of work discussing critical religion in relation to processes of law.  I argued that defining what is “religious” and what is “secular” for the purposes of enforcing the religious freedom in Canada is impossible, as provincial and federal law do not (and cannot) define “religion” in their most important documents. The definition of “religion” is left to the interpretation of the courts at key moments of dissension; the courts, in turn, rely on both outdated legislation and on precedence dated back to an era where Canada was understood to be “a Christian country”.

Attempts have been made to remove tradition-specific language from legal statements, but without the context from which the word “religion” and its cognates emerge, statements about “religion” and its essence leave an overwhelming amount of room for processes of power to dictate, at any point in time, what is permitted and what is prohibited. The decision of what constitutes a religious symbol is left in the hands of lawmakers, who necessarily have their own idea of what religion “is”. Little room is left for debate over whether the symbols depicted in Figures 1 and 2 are understood by their wearers as religious. Those who wear items such as the hijab or the yarmulke might not categorize those items as “religious”, but rather as “cultural” or “traditional”. They may even consider these reasons to be as equally important as so-called “religious” values, and believe that these deeply-held values should be honoured in a similar fashion.

Therefore, the line that the “Charter of Québec Values” draws between permitted “religious” symbols and prohibited ones assumes a number of things. First, it assumes that the distinction between “religion” and “secular” is clear-cut and that lawmakers have an objective view of what counts as a religious symbol.  Secondly, it assumes that that “objective” point of view is somehow completely segregated from a history of precedence that relies on Christian categories from the 1950s. Thirdly, the Parti Québécois even assumes that the residents of Québec would only accept a very narrow range of symbols in the public sphere!

I believe it would be helpful to those seeking to analyse this recent development in Canadian law (and, for that matter, any developments regarding “religion” in human rights law worldwide) to take into account the arguments of scholars in critical religion. Using these insights, critics may be able to tackle what is, as I see it, the larger issue: that the ongoing existence of “religion” as a legal matter without a clear definition leaves room for harmful assumptions to be made and for these assumptions to become law.

Some (Mainly) Very Appreciative Comments on Brent Nongbri’s “Before Religion”

06 Monday May 2013

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Some (Mainly) Very Appreciative Comments on Brent Nongbri’s Before Religion: A History of a Modern Concept (New Haven and London: Yale, 2013).

In Before Religion: A History of a Modern Concept (Yale: 2013, Brent Nongbri makes a significant contribution to Critical Religion that will be useful to both students and theorists. This is a clear and carefully written book, well researched and informatively referenced. Nongbri’s strength lies in his feeling for antiquity. With precision and skill, he reviews English translations of the word religion in influential early Greek, Roman and Arabic texts to argue that the term is an anachronism supporting the conventional notion that ‘religion’ refers to a recognizable and timeless phenomenon. Although such insight will be familiar to readers of the works of Timothy Fitzgerald, David Chidester, Richard King, Russell McCutcheon et al., Nongbri’s account is particularly notable for its sustained clarity and judicious selection of ancient source material.

Nongbri tells us that his questioning of the universality of “religion” began when he realized that the word did not exist in the Khasi language his father grew up speaking in northeastern India. Instead of referring to specific “religious” ideas or behavior that could be distinguished from “secular” varieties, “ka niam”, the Khasi term his father offered as an equivalent to religion, simply means “customs” in a broad sense. Further inquiry revealed that niam is actually a Bengali term signifying “rules” or “duties.” This discovery about his paternal tongue forms the paradigm that Nongbri identifies again and again in his investigation of ancient sources. As he leads his readers through myriad texts of early history, he points to the absence of “the modern concept of religion” and how the insertion of the word misrepresents authorial intentions.

Nongbri structures his arguments memorably around a few well-articulated themes. His chapter titled “Some (Premature) Births of Religion in Antiquity” is especially effective. Under this heading, he refutes claims that “religion” emerged in reference to the Maccabean revolt, in Cicero’s rhetoric, in Eusebius’ texts, or in Muhammed’s innovations. He also does an impressive job of showing that the tenets Tomoko Masuzawa identifies in the nineteenth century as formative for a discourse of world religions are actually well underway in the seventeenth century in the work of Alexander Ross et al.

Nongbri is convinced that the study of antiquity could be improved if “students of the ancient world [were] … to work on generating a better vocabulary for talking about the various ways that ancient peoples conceptually carved out their worlds, a better means of describing the clusters of practices and beliefs outlined by ancient authors…”(p.53). He writes that the task is not one of finding a better word for “it” – i.e. of uncovering what “religion” meant in antiquity – but rather of realizing that there never was an “it” in the first place. Nongbri believes that if his advice were heeded, we would not wind up with more “slightly tweaked” books about early religions, but rather with more specific and insightful studies on such subjects as “Athenian appeals to ancestral tradition, Roman ethnicity, Mesopotamian scribal praxis, Christian and Muslim heresiological discourses, and other topics that will encapsulate and thoroughly rearrange those bits and pieces of what we once gathered together as ‘ancient religions’ ”(159).

I suggest that Nongbri’s counsel for reforming the study of ancient history should be applied throughout the field of Religious Studies. Nongbri hesitates to recommend such an approach to scholars of contemporary “religions.” Instead, he concludes his book with what I find to be a contradictory and confusing call to “think outside of our usual categories” (159) by being aware that whenever we use the word ‘religion’ we are employing a “second-order” redescriptive concept. Surprisingly, Nongbri says that such a conscious – yet, to my mind, impossibly acrobatic – use of the term could even have some benefits in the study of antiquity. Thus, he momentarily argues against the thrust of his own conscientious analysis in his conclusion.

Despite this brief retreat from the implications of his critique, Nongbri succeeds in building a solid case for historians of antiquity to purge their intellectual toolbox of a distorting anachronism. In addition, his book also points to similar confusions and misrepresentations that occur with the use of ‘religion’ in reference contemporary times when the word is imposed on non-Western cultures like his father’s or when scholars continue to use rhetorical ploys such as “embedded religion” to reinscribe religion as “eternally present” (152).

The argument that Nongbri frames so clearly and competently in relation to ancient history is applicable in present times and possibly more urgent. By assuming that religion is an eternal and universal “it” that identifies a bounded sphere of human life, distinct from what we term “politics” or “economics” or “the secular,” we are doing more than hampering our understanding of epochs in the past. We are also obscuring our ability to see through the veils of ideologies that currently surround us. The task of lifting these veils, or, at least, of making them less opaque is one way to conceive of an objective for “Critical Religion” – an aim that Nongbri’s work helps to further.

Law, Critical Religion, and the Importance of Semantics

26 Monday Nov 2012

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I often hear it said that the contributions of scholars in critical religion are “merely semantic”; that problematizing the category of religion and the meaning of the word “religion” an academic context has no bearing on the understanding of religion “on the ground”. The meaning of “religion”, many argue, is fluid and dynamic, and so the definition and approach of scholars studying it must reflect this. No single definition applies to “religion”, nor should there be, as people use the word to mean different things. In short, many argue that studying the idea of “religion”, and the implications of the word itself, have no real practicality beyond the academy.

I would like to offer a brief rebuttal to that argument, using as an example laws concerning “freedom of religion”. Provisions for freedom of religion have become the norm for Western democracies and their bills of rights (such as in the Canadian Charter of Rights and Freedoms and the First Amendment to the United States Constitution), but there are several reasons why these provisions might warrant re-examination. Below, I will draw from my knowledge of North American case law to demonstrate how critical religion may be invaluable to moving towards a more nuanced understanding of the issue.

If a citizen presents a case to Canadian (or American) courts claiming their right to freedom of religion was infringed, either by another citizen or by an institution, one of the first steps in the legal process is to determine if the claim is legitimate. If the plaintiff is not a member of a recognized religion, the court must first determine if their practices qualify as “religion”. Otherwise, a case for rights infringement cannot be made. How does the court determine whether the plaintiff’s religion qualifies as such in the eyes of the law? It does so by looking at the definition of the word “religion”.

One of the main problems lies in the fact that constitutional documents which proclaim freedom of religion in North America do not describe or define “religion”. In both Canada and the United States, the interpretation of “religion” has been left to the courts. These rely on two sources of information to form this interpretation. The first consists of previous and pertinent case law, if it exists. Secondly, the court calls upon expert witnesses who can attest to the legitimacy of a claim based on their academic knowledge of religion. It is the academic understanding, and not a common or “lay” understanding, of the category “religion” that is privileged.

Still, the Supreme Court of Canada has done its best to use expansive definitions; in the landmark 2004 case Syndicat Northcrest v Anselem, it ruled that religion “is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment [sic], the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.” The issue here is that, despite their best efforts to be inclusive, courts fail to realize that using vague language does not divest the concept of “religion” from its Christian and colonial history. Even the words “beliefs” and “faith” stem directly from a Christian rhetoric.

That the definition of “religion” is left up to the interpretation of courts has not shown to have a substantial impact on traditional religions like Protestant Christianity, because they are easily recognizable as “religion”. However, the question of whether religious practices are considered official or acceptable can still be disputed, as Winnifred Sullivan demonstrated beautifully in her book The Impossibility of Religious Freedom. The narrowness of the definition may present problems for new groups that identify themselves as “religion”, but are not recognizable as such to the court.

An example that comes to mind is Wicca. A tradition that emerged in the 1950s and spearheaded by retired civil servant Gerald Gardner, Wicca is an un-institutionalized earth-based new religious movement that focuses on the immanence of the divine in nature. Wicca has no official tenets of faith, no designated clergy or standard ritual format, and no fixed location of worship. Wiccan groups have had considerable difficulty proving to the government (Canadian or American) that they are legitimately religious, for these reasons.

When determining whether Wicca is a religion in the eyes of the law, the semantics of “religion” are incredibly important. The large majority of Wiccan groups who qualified for tax exemption in the United States designate themselves “churches”, or describe themselves using words like “faith” and “beliefs”. In Roberts et al. v Ravenwood Church of Wicca, the granting of tax exemption for religious reasons was delayed by Justice Jordan, dissenting, who stated:

While the majority opinion states that the Wiccan church does not believe in the devil, I do not believe it conforms to the traditional concept of a religion as embraced in the preamble of our State Constitution and as expressed in the Pledge of Allegiance to the flag of the United States. This nation was founded “under God,” not the “karmic circle.”

If guarantees to “freedom of religion” are granted only if a person’s religion is recognized, yet the definition of “religion” relies on Christian rhetoric, are the provisions really ensuring freedom of religion? Should provisions for “religion” exist at all? These are questions I will examine in more detail in my upcoming Master’s thesis.

The work of scholars in critical religion may indeed concentrate on the semantics of “religion”, but it is far from being “merely” an academic issue. The meaning of the word “religion” and the language used to regulate that definition are at the forefront of the constitutional cases about new religious movements. While it is perhaps unlikely that critical religion will prompt an amendment of provisions for “freedom of religion”, the continued work of scholars in the field may inform those expert witnesses called to consult in these cases, and thus help shape the legal understanding of human rights in the process.

Gender and the Vestigial State of Religion

10 Tuesday Apr 2012

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This is a guest posting by Prof. Naomi Goldenberg, introducing some of the themes she will be addressing when she visits the UK in late April 2012.

 

My interest in critical religion originates in my wish to restart the radical feminist work that used to be done in the subfield of “women and religion.”  For years I had been attending academic meetings in which scholars who spoke about the topic saw themselves as representatives of their own traditions or as apologists for traditions that were the subjects of their research.  Far-ranging critiques of sexist ‘religious’ beliefs, policies and practices, such as that of Mary Daly, had fallen out of favor.  In its place was a quieter, more respectful spirit of reform.  ‘Religious’ history was searched and mined for accounts of women who could be seen as clever agents within their traditions, as heroines who made the best of what was at hand, and as creative interpreters who found sustenance and inspiration in the seemingly oppressive texts and rites of their ‘faiths.’  Although the field of women and religion was flourishing in both divinity schools and secular universities, I was losing interest in an enterprise that I thought had abandoned the objective of political critique and embraced what I consider to be an attitude of advocacy for traditional thought and behavior.

I now think that feminist critical analysis in “women and religion” was blunted because the category of religion was not interrogated.  While deconstruction of concepts and politics related to gender and sex continues to foster exciting theory with significant social impact, religion itself remains largely an under-theorized given.  I believe that this tacit reification of  ‘religion’ works both to undermine women’s recent political achievements and to hinder further advancement.

Consider just these two examples: 1. From the U.S.: Citing the right to ‘religious’ freedom, Republican candidate Rick Santorum proposed allowing states to ban women’s access to contraception, a right won by means of court decisions in the late 1950’s.  Similarly, both Santorum and Mitt Romney, the front-runner for the nomination, objected to the new US health care law’s funding of legal abortions on the grounds that it could cause employers’ to compromise their religious beliefs.  Several newly-enacted state laws now restrict women’s access to health care related to reproduction on religious grounds.

And 2. – From Afghanistan: According to reports from the Guardian News Service, in March of this year, the Karzai government issued a statement asserting that women are subordinate to men, should not mix with men in work or education and must always have a male guardian when they travel.  The statement thus suggests that the Afghan constitution that enshrines the equality of men and women is flawed from a religious perspective.  Furthermore, violence against women as long as it is “sharia compliant” appears to be condoned.  Such news supports the opinion of Fawzia Koofi, the brave woman campaigning to be Afghanistan’s first female president, who says that David Cameron and Barack Obama are supporting the Karzai government in talks with people who want to bribe the Taliban by limiting women’s freedom using ‘religious’ justifications.

By proposing that religions be considered vestigial states at least in regard to law and public policy, I hope to suggest one way of countering arguments that restrictions on women’s rights and freedoms for ‘religious’ purposes deserve more respect and attention than if such limits were to be put forward for merely ‘political’ reasons.  Throughout most of history, governmental organizations have been based on masculine hegemony.  According to the argument I am advancing, when governments are displaced they can persist within contemporary states as ‘religions’ that maintain their patriarchal origins and character.  Since women’s challenges to male domination have only met with some success in recent times within fairly contemporary forms of statecraft, if earlier states known as ‘religions’ are allowed too much authority over domains such as ‘the family’ or ‘the home,’ women will be the losers.   The two examples from the US and Afghanistan provide support for this line of theory.

An Argument for Thinking of Religions as Vestigial States

12 Monday Mar 2012

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This is a guest posting by Prof. Naomi Goldenberg, introducing some of the themes she will be addressing when she visits the UK in late April 2012.

 

My work at present is focused on developing the hypothesis that religions can be productively thought of as vestigial states.  I consider this to be one way of de-essentializing, demystifying and deconstructing the category of religion.  In general, the concept directs theory along two trajectories: one is the analysis of particular histories in which ‘religions’ are formed or solidified in distinction to ‘states’; another is a focus on classifications which current governments use to delineate spheres of power.  I understand that if the term vestigial state has any resonance, that it will be as a temporary, partial and provisional tool for building theory in critical religion.

My work draws on James Crawford’s discussion of what defines a state in the latest edition of The Creation of States In International Law (Oxford: 2006).  Although not without its critics, Crawford’s articulation of the contingencies attached to the idea of a ‘state’ remains an important touchstone in international law. I also refer to texts by Max Weber and Louis Althusser to make my argument that the control of violence is a basic tipping point between what I want to call a vestigial state and a fully empowered government.

Vestigial states tend to behave as once and future states.  They are always somewhat restive and are generally eager to take on whatever social, cultural and/or managerial functions the recognized state cedes to them.  For example, presently in contemporary nation states, categories of custom and law pertaining to the ‘family’ are considered proper spheres for ‘religious’ authority.  In contrast, economic policies and most forms of violence are currently placed outside of religious control.  Nevertheless, in some jurisdictions ‘domestic’ violence done in the name of religious practice is tolerated at times.  In general, whenever religions, i.e. vestigial states, claim rights in regard to police or military action, they risk being delegitimated in relation to the category of religion.  Thus, in regard to Islam, for example, terms such as ‘political Islam’ or ‘Islamist’ are invented to cordon off appropriate forms of Islam from those that contemporary nation-states consider inappropriate. I argue that Islam is in the process of being turned into a ‘religion’ – i.e. of being made ‘vestigial’ – within some contemporary nation states at the same time that it functions non-vestigially in other parts of the world.  Debates about Islam illustrate how ‘religion’ as a discursive category is employed as a means of control in Western democracies.

My hope is that scholars who specialize in particular historical periods and geographical regions might find the concept of vestigial state to be useful in a range of contexts.  Currently, I have a particular interest in the shrewd initiative by the Dalai Lama to separate his ‘political’ functions from his ‘religious’ ones by encouraging the democratic election of a political leader of the Tibetan people.  Thus is Tibetan Buddhism being constructed to conform ever more coherently with the category of ‘religion’ as a way of limiting the powers of future Dalai Lamas whom China will try to name and control.  In my terms, the Dalai Lama is defining himself as a leader of a vestigial state in order to create a separate sphere of ‘political’ leadership that might escape Chinese influence.

The hypothesis that religions be thought of as vestigial states works well when applied to Jewish history in a manner consonant with the work of Daniel Boyarin in Border Lines: The Partition of Judaeo-Christianity (Un. of Pa.: 2004) and Seth Schwartz in Imperialism and Jewish Society 200 B.C.E. to 640 C.E. (Princeton: 2001).  Boyarin argues that ‘Judaism’ as a religion is created over the centuries in dialogues with Christian theologians.  I argue that such discursive production is perhaps secondary to the machinations of state powers that had to deal with Jews as a conquered ethnic group within their jurisdictions.  Schwartz’ hypothesis that the village evolves as a ‘religious community’ within a state supports my argument that ‘religions’ arise as ways of granting attenuated powers to displaced governments.

Groups aspiring to have the status of ‘religions’ often use narratives that identify with former sovereignties both real and/or semi-fictional. Contemporary forms of Wicca, for example, posit an ancient history in which governments were organized according to the principles Wiccans now follow.  Thus, Wiccans might be seen as imagining their covens as vestigial embodiments of previous sovereign governments.

The nostalgic reference to a former deity or deities as a means of supporting current governmental power is a common theme in Western history and literature.  I draw on my background as a classicist to highlight this trope in the Theogony of Hesiod in regard to how the reign of the Titans is cited when the Olympians triumph over them.  I also mention Athena’s treatment of the Furies in Aeschylus’ Oresteia.  In both cases, although the term ‘religion’ is somewhat of an anachronism in ancient Greece, the succession of sovereignties is nevertheless marked by relegating former ruling orders to the status of a cult, i.e, a vestigial state.

Examples of the ritual citation of religious vocabulary as a way of authorizing so-called secular governments abound.  President Eisenhower’s move in 1954 to add the words “under God” to the US pledge of allegiance is one instance of how religion is conjured as a type of previous sovereignty on which present powers are based.

Conceptualizing religions as vestigial states has value for clarifying matters pertaining to supposed qualitative differences between ‘religious’ and ‘secular’ law.  According to my reasoning, such a distinction is more productively thought of as occurring between two forms of ‘states’ with markedly similar processes involving contingency, debate and compromise, something I will draw out further in my forthcoming presentations.