The title of Winnifred Fallers Sullivan’s book, “The Impossibility of Religious Freedom,” (Princeton University Press, 2005) is both enigmatic and provocative. As she states in her introduction, “the impossibility of religious freedom is not obvious, nor is the advocacy of such a position popular.”
Because religious freedom is a bedrock principle enshrined in many national constitutions and international declarations, Sullivan’s thesis begs close scrutiny.
Article 18 of the United Nations Universal Declaration of Human Rights (UDHR), ratified in 1948, declares:
Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.
The First Amendment of the U.S. Constitution states that
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
Which of the freedoms described or implicit in these declarations is “impossible?” Let’s focus for a moment only on the first clause of the UDHR declaration. The right to freedom of thought and conscience, though denied by many regimes throughout history, seems unassailable in liberal democracies as long as thought and conscience are not construed to include practice. There is a broad consensus in these democracies that all people should be free not only to think and believe but also to publicly profess any idea that seems compelling to them. Acting on such beliefs, however, may infringe upon the freedoms of others. Thus, American Nazis may freely believe whatever they like about African-Americans, Jews, and homosexuals, but they are not free to plant bombs outside synagogues, black churches, or gay bars.
This right—to freedom of thought and conscience—necessarily includes the right to religious beliefs, which flow from thoughts and involve matters of conscience.
Does the UDHR need to explicitly mention religion in that first clause? No. It could have said, simply, that “Everyone has the right to freedom of thought and conscience,” because religion is a matter of thought and conscience.
But, then, is religious freedom “impossible” when understood in this way? The question takes us to another level, where we must decide what religion is. The impossibility of religious freedom may result from our inability to make this prior determination. If there is no universal consensus as to what constitutes religion, then religious “freedom” cannot be protected.
This may seem like foolish quibbling over semantics. Doesn’t everyone know what religion is? But in courts of law, such determinations must be made. The law cannot protect something that has not been coherently defined, and this is precisely the problem that Winnifred Sullivan discusses in her book.
Sullivan, an Associate Professor of Law and Director of the Law and Religion Program at the University of Buffalo, was called as an expert witness at the trial of Warner vs. Boca Raton, a 2005 case involving the enforcement of regulations at a municipal non-denominational cemetery in Boca Raton, Florida. The plaintiffs were a group of Catholic, Protestant, and Jewish families who had placed religious artifacts (e.g., crosses, statues, stars of David) around the graves of departed family members. Their contract with the cemetery clearly stipulated that only flat horizontal markers were allowed. Nevertheless, they sued the city, claiming infringement of their First Amendment right to free exercise of religion.
The task of the court was to determine if the plaintiffs’ vertical enhancements of the grave sites were in fact “religious” in nature, as they claimed, or just “personal expressions,” as the city claimed. But the very process of deciding what counts as religion is loaded with constitutional implications because of the “establishment” clause of the First Amendment. Imagine a U.S. Federal court deciding that “lived” or “folk” religion, which was so clearly in play here, does not deserve the legal protection offered to established hierarchical and authoritarian religion. And yet that is exactly what happened in the Warner vs. Boca Raton trial.
Sullivan carefully documents the court’s proceedings to demonstrate that ordinary citizens were repeatedly harassed to identify, explain, and justify their religious views concerning burial practices. Their testimonies revealed them to be not just uninformed but largely unconcerned about whether these practices were “required” or even legitimized by the religious institutions with which they identified themselves. Because the plaintiffs were unable to make such linkages, they lost their case.
The court had, in effect, decided that folk religion does not deserve the protections accorded to orthodox institutional religion, though the decision was not framed in this way. Rather, these folk religious expressions were deemed not to “qualify” as religious because they were not specifically endorsed by religious authority.
Sullivan has this to say about folk religion (from pp. 2-3):
The burial practices of the Warner plaintiffs belong to a grouping of religious beliefs and practices that one might call “lived religion,” or “folk religion,” that is, religion that takes place beneath the radar of religious officials and institutions. These practices…reflect U.S. religious diversity, immigrant piety, political idealism, and a do-it-yourself style of religious ritual and iconography. This kind of religion is, for the most part, local and family-centered—but it is also linked in important ways to international and transnational religious communities and traditions.
[Such practices] are common throughout the world. 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. The Warner trial provides a case study for how and whether, given these conditions, law anywhere today can do what it is being asked to do: guarantee freedom of religion. Courts need some way of deciding what counts as religion if they are to enforce these laws. Is it possible to do this without setting up a legal hierarchy of religious orthodoxy? And who is legally and constitutionally qualified to make such judgments? Can “lived religion” ever be protected by laws guaranteeing religious freedom?
What if the court had decided for the plaintiffs, basing its decision on a recognition of their burial practices as “folk religion?” The city would have been disgruntled, but would justice have been served and free exercise protected?
The problem here is that the definition of religion can be expanded even beyond folk religion. What of unaffiliated mourners, those who declare themselves as “nones” on religious surveys? Are they also entitled to place impromptu memorabilia on the graves of their departed loved-ones? Such displays may be prompted by feelings almost identical to those of believers, so is difference to be found only in their beliefs about the afterlife? What of Unitarians, most of whom hold very divergent personal beliefs that often do not include an afterlife or even a supreme deity?
T. Jeremy Gunn, in an article entitled “The Complexity of Religion and the Definition of ‘Religion’ in International Law” (Harvard Human Rights Journal) points out that the term “religion” remains undefined as a matter of international law. Even national constitutions that guarantee fundamental rights of religion fail to define it. This might not matter were it not that religion is so much more complex and fraught than other terms left undefined, such as “conscience” and “thought.” What is even more remarkable than this failure is the broad historical lack of consensus about the meaning of the word. As one historian (Brian C. Wilson, quoted in the above article, endnote 12) wrote, the “effort to define religion is as old as the academic study of religion itself, [and] the definitional enterprise…continues in full vigor.”
So far, we’ve accepted the prerogatives of religion as a “given,” i.e., whatever can be determined to constitute religious expression is to be given special status. But why should this be so? Is there any person or group of persons who should not have had the right to install vertical displays on their families’ grave sites if those deemed “religious” were allowed to do so?
Presumably, most of the population of Boca Raton is religious, so what is the point of a cemetery regulation banning vertical displays when, clearly, almost anyone buying a cemetery plot can get a religious exemption? And where does that leave the minority of “non-religious” folks? Are they to understand that only vertical displays of a religious nature are to be tolerated? If so, can there be any clearer case of religious discrimination—in this case, discrimination against a non-religious minority by a religious majority?
What do we have here that is substantially different from the suppression or “disprivileging” of religious minorities by certain Islamic states? Discrimination against the “non-religious” is still a form of religious discrimination.
This is where the title of Sullivan’s book starts to become clear. Religious freedom is “impossible” because its putative guarantor, the secular state, cannot decide what religion is and cannot therefore guarantee its freedom. If the secular state were to define religion for purposes of litigation, it would be in violation of disestablishment clauses, which prohibit government from “making laws respecting an establishment of religion.” In other words, the state cannot decide what counts as religion and what does not. If any state makes this determination, it has curtailed freedom of religion.
The other prong of this conundrum lies in the implied privileging of “religious” freedom over “freedom.” Why is religion singled out for freedom, as if religious adherents had rights that others do not? Sullivan asks,
What would be lost if law focused not on the special case of religion but on the accommodation of difference generally, and what compromises any such accommodations imply for commitments to equality? Without an explicit protection for religion, guarantees of freedom of speech, of the press, and of association would continue to protect most of those institutions, including religious ones, usually thought necessary for a free democratic society. With respect to some religious practice, though, religious persons and communities would, like other groups, have to make arguments for the special legal accommodation of difference to legislative bodies… Government favoritism (or endorsement) could be prevented by vigorous insistence on principles of equality, as is happening now in the case of gay marriage. Groups making a case for differential treatment would be required to make a very strong showing, as in race cases, of past discrimination or present need, to justify special legal treatment.
And she concludes her final chapter with these words:
The evidence in the Warner case could be understood to suggest that what is sought by the plaintiffs is not the right of “religion” to reproduce itself but the right of the individual, every individual, to life outside the state—the right to live as a self on which many given, as well as chosen, demands are made. Such a right may not be best realized through laws guaranteeing religious freedom but by laws guaranteeing equality.