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.