The world that Smith made

This piece was originally posted in the Immanent Frame.

In November 2011 the United States Conference of Catholic Bishops announced the creation of a new Ad Hoc Committee on Religious Liberty to be led by William Lori, Bishop of Baltimore. Addressing his “brothers” in the conference, and citing a wide range of authorities including John F. Kennedy, George Washington, Alexis de Tocqueville, Pope Benedict XVI, and Learned Hand, Lori explained the need for the new committee:

For some time now, we have viewed with growing alarm the ongoing erosion of religious liberty in our country . . . Aggressive secularism is also a system of belief. In failing to accommodate people of faith and religious institutions, both law and culture are indeed establishing un-religion as the religion of the land and granting it the rights and protections that our Founding Fathers envisioned for citizens who are believers and for their churches and church institutions . . . Together, we will do our best to awaken in ourselves, in our fellow Catholics, and in the culture at large a new appreciation for religious liberty and a renewed determination to defend it.

From the evidence of this and other calls to arms by the American Catholic bishops, as well as the ringing endorsement they have received from a remarkably wide range of public figures, it seems that many Americans truly believe that a zombie-like phenomenon called “un-religion” stalks the land, promoted alike by “law” and “culture,” peddling aggressive secularism and displacing the rights the “Founding Fathers envisioned for citizens who are believers and for their churches.” What is needed, these bishops say, is recognition that “the freedom of religious entities to provide services according to their own lights, to defend publicly their teachings, and even to choose and manage their own personnel, is coming under increased attack.”

There is much that could be said about the history of the Catholic Church and its dedication to the defense of religious freedom. What interests me about the formation of a new Ad Hoc Committee on religious freedom at this time is the company that the bishops are keeping today—and why the bishops’ bellicose language accusing the Obama administration of mounting a war on religious liberty seems to make sense to such a disparate and varied group. Beyond the obvious self-interest, there is a genuine urgency to the bishops’ appeal, one that is legible to a surprising number of Americans.

The bishops are not alone in their anxiety. In the last couple of decades, numerous projects have been launched to advocate for religious freedom, in the U.S. and elsewhere, many warning of the dire consequences of failure. Suddenly, it seems, it is the protection of religious freedom that stands between us and descent into nihilistic oblivion. How did it come to be that so many current concerns are being traced to a lack of religious liberty?

It is not just Americans. Advocacy for religious freedom is a global phenomenon today, as my colleagues and others have detailed. And we have been here before. Religion and freedom are intertwined in the stories told about government in complex ways throughout history. A full accounting has yet to be done. Its salience now is also deeply and problematically connected to a post 9/11 politics of fear. In this post I will confine myself to the recent U.S. domestic context—and to only one thread in the multiple genealogies that I think have led us to this perplexing moment.

It is a commonplace in the academic study of religion to observe that the word religion is manifestly conditioned by the history of its use and that it is deeply problematic, epistemologically and politically, to generalize across the very wide range of human cultural goings-on that are now included in this capacious term. To speak of religion is to elide and conceal much that is critical to understanding the deeply embedded ways of being often denoted by the short-hand term “religion[s].” It is also common to note the very specific difficulty of definition that faces interpreters and enforcers of legal instruments purporting to protect and regulate the freedom of “religion.”

American Catholic bishops have had their own fraught history with religious freedom. They both wish to claim it for their own and distance themselves from its implications. By associating themselves with others they are always too in danger of losing control of the narrative and falling into what the anti-modernists in the Church identified as the sin of indifferentism.

There is a sense in which this all began anew two decades ago when the U.S. Supreme Court decided Employment Division v. Smith. Justice Antonin Scalia’s opinion for the majority in Smith (known as the peyote case) held that the free exercise clause of the First Amendment to the U.S. Constitution does not mandate a religious exemption, or accommodation, from neutral laws of general application that impinge on the activities of religiously motivated folks, even if such laws effectively outlaw acts that are understood by them to be religious duties—even sacraments.

The Smith decision was widely received by religious conservatives in the U.S. as effectively and finally revealing the implacable (and widely suspected since the school prayer decisions in the 1960s) hostility of the federal government towards religion. But, much more importantly, the coalition of more than sixty religious groups that came together—and quickly and successfully lobbied Congress to overrule Smith with passage of the Religious Freedom Restoration Act (RFRA) in 1993—included both liberals and conservatives. Indeed it included groups from across a very broad American spectrum, politically and theologically.

Baptists, evangelicals, Jews, Seventh-day Adventists, Presbyterians, Unitarians, Pentecostals, Quakers, and more. All agreed that religion itself—religion-in-general—was under threat as a result of the Smith decision. All recognized that what bound them together was that they were all threatened by the secularism made evident by Smith. What united them and enabled them to speak across the historical and cultural gaps that had previously divided them was that they were all “religion.” They needed to bury the hatchet and confront the enemy. Doing that was made easier by the fact that the ground had been prepared, and the consolidation of this alliance facilitated, by the emergence and popularization of a certain style of religious studies as a lingua franca for speaking about religious difference in the U.S. context. A lingua franca promoted by Huston Smith and others. Protestant-Catholic-Jew and Judaeo-Christian had morphed into “here comes everyone.”

Smith was a wake-up call. Smith suggested that religion in the U.S. had become complacent about its irenicism, inevitability and cultural entrenchment.

The effective institutionalization of the post-Smith politics changed the legal and political language about religious freedom in the U.S. and abroad. RFRA was specifically intended to reinstate the compelling interest test for religious exemptions. While subsequently declared unconstitutional with respect to the states, RFRA was followed by a raft of other more carefully drafted legislation, including the Native American Graves Protection and Repatriation Act (NAGPRA), International Religious Freedom Act (IRFA), and Religious Land Use and Institutionalized Persons Act (RLUIPA) at the federal level, as well as dozens of state laws—or as they are sometimes known, mini-RFRAs—all designed to provide robust protection for religion.

The aftermath of Smith also saw the development of a vigorous and well-funded specialized bar promoting the rights of religion.

While Smith most obviously led to a shift from constitutional appeals to the drafting of legislation (at every level—even local school boards), it has also arguably provoked a now further shift away from reliance solely on selective accommodations from secular law to robust jurisdictional demands for church autonomy or even church sovereignty. In a series of cases considering the constitutionality of school voucher programs and the faith-based initiative, the Court has held that the establishment clause does not prohibit the recognition and direct funding of religious institutions by government. There is a new accommodation between the two clauses, giving institutional religion—what might once have been considered “established” or “sectarian” religion—new legal definition and relevance.

American religious politics is not, of course, entirely produced by Supreme Court jurisprudence. But it is plausible, I think, to see Smith as a turning point in the consolidation of a broad religious alliance that is at work today, one which collectively opposes secularism while each member aggressively seeks to shore up its own ecclesiological position. There is a sense in which Smith‘s comprehensive rejection of religious reasons invented religion anew—and gave new life to un-religion. Smith, in part because of the high-handed rhetorical violence of the majority opinion, and its refusal even to discuss Native American peyote use beyond a brief half-sentence reference, seemed to dismiss a carefully nurtured U.S. religious multiculturalism with the back of a hand. The response of U.S. religious groups has been impressive.

To what extent does a legal and political commitment to religious freedom imply a need for formal legal recognition of churches and other religious institutions? The most recent decision by the Court, Hosanna-Tabor v. EEOC, is interesting in part because it brings to the fore a troublesome leftover issue for Americans—and for others who would promote religious freedom—an issue with a long U.S. pedigree but one made newly relevant by the challenge of Smith. A radical version of U.S. disestablishment—never realized—suggests that churches in the U.S. are and have, from the beginning (whether in Puritan New England or at the time of the Constitution), been understood ideally to be entirely voluntary and private organizations that survive or not due to the enthusiasm and pocketbooks of their congregants (and God’s will), not trans-historical entities or public institutions legally defined and supported by the state. The fragile voluntarism of the free church now seems a slender reed on which to build a bulwark against un-religion. Older, tougher, ecclesia are being looked to.

A remarkable number and range of religious institutions filed amicus briefs on Hosanna-Tabor‘s behalf. Briefs were filed by some regular filers in religion clause cases, others less so, some represented by well known First Amendment lawyers and advocacy organizations, others newer to the scene—many of them very strange bedfellows indeed. These organizations, like the RFRA coalition, represent a very wide range of religious positions, including evangelical Christians, Hindus, Muslims, Catholics, Mandaeans, Methodists, Presbyterians, Afro-Carribean religions, Jews, Mormons, and Lutherans. What seems to have brought them together is not so much the right of religiously motivated individuals to a conscientious exemption from laws that burden their religious practice, but a robust assertion of their corporate jurisdictional autonomy from the state.

The muscular hierarchical demand of the rights of churches and other religious authorities is arguably the world that Smith made. While some national and international human rights regimes may have moved toward a more individualistic model of protecting religious freedom, one that focuses on the sincerely formed consciences of individuals, religiously motivated groups in the U.S. may be moving the other way, back towards what in the U.S. used to be called establishment—that is, government support of “pervasively-sectarian” institutions—in a curious embrace of those churches, and the folks who run them, which once seemed the very antithesis of American evangelical religion.

There is a tragic quality to this situation. A broad-based critique of secularism feeds a romantic yearning for the presumed holism of intact and homogenous religious cultures. Churches and other religious authority structures can no longer rely on the conscientious dissent of their followers from majority cultures. They are demanding secular backup in their efforts to impose discipline. Many religious individuals meanwhile worry about whether the interests of organized religions can continue to serve as a proxy for their own interests.

The U.S. situation has a particular history, one that might be best described as one without a church or a state—and without the anticlerical politics that succeeded the legally established churches and absolute monarchies of Europe. It is “we, the people” who are in charge of both. Perhaps that is why Americans can be so naively cavalier about the reinstatement of the rights of religious authority by political authority—in the name of religious freedom—at a time when both are being undermined elsewhere by revolutions that do not fear so much un-religion as un-democracy. Promotion of religious freedom today may be undermining democracy, here and abroad. Not because democracy is necessarily secular, but because the religion defended by the bishops and other warriors for religious liberty, is autumnal rather than vernal.

Rethinking Secularism: The Church

This piece was originally posted in the Immanent Frame.

Various histories and sociologies of religion and various theologies have informed the Supreme Court’s First Amendment jurisprudence over the years. The Reynolds court cited the then fashionable racial theories of political scientist Francis Lieber to support its condemnation of polygamy. Justice Black spoke of the threat that Catholicism posed to the American polity. Liberal theologians have been enlisted to expand the reach of conscientious objector status and condemn the teaching of creation science (U.S. v. Seeger and McLean v. Arkansas). The Court in Hosanna-Tabor tells a story of “the church.”

The last sentence of the Court’s opinion in Hosanna-Tabor announces the dogma that binds the majority opinion. Affirming for the first time the constitutional status of the ministerial exception, the Chief Justice declares that “(t)he church must be free to choose those who will guide it on its way.” Not “persons” must be free to choose their own ministers, but “the church” must be free. What is “the church?” Christians mean different things at different times when they use the definite article in speaking of church—when they speak of “the church.” Sometimes they are referring to the church on the corner, or a particular church organization, such as the Presbyterian Church USA, one of any number of churches. (That is how the Court uses the phrase at various points, when referring to Hosanna-Tabor in particular, as on page 5, or when it refers specifically to the Church of England, as on page 7, and so on.) In legal and political contexts, “the church” may be opposed to “the state,” vaguely throwing a circle around all religiously motivated activity. The Court in Hosanna-Tabor is not speaking in these ways in its last sentence. The Court is speaking theologically, and dogmatically, as it does several pages earlier in describing the purpose of the ministerial exception: “The exception . . . ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly eccle­siastical’—is the church’s alone.”

Theologically speaking, “the church” refers to what might be termed the mystical church—also known in Christian doctrine as the “body of Christ”—that is, the communion of all Christian believers across space and time, alive and dead, unified through apostolic succession. Christians have differed about how the visible church on earth should be governed and have related in different ways with political authorities. The Roman Catholic Church understands itself to be a universal church—that is, as embodying all Christians, on heaven and on earth. Protestants have had a range of theological readings of the church, derived in part from their new readings of the New Testament beginning in the sixteenth century, a range that is reflected in the range of ecclesiologies among American colonial proponents of religious freedom. But a distinguishing feature of the United States, arguably, is that after 1791, the unity of Christendom expressed as “the church,” whether in Roman Catholic or Protestant guise, no longer has legal personality. It is the people who are in charge.

Take Roger Williams, for example, the seventeenth-century founder of Rhode Island and colonial hero of many a current religious defender of the rights of churches in the United States. For Williams, the church was to be found, if at all, in those local few “gathered in his name,” without any bureaucratic superstructure. At the end of his life, Roger Williams, skeptical of Christian claims of biblical authority to found churches and of the hypocrisies of what he derided as Christendom, belonged to no church. One could even argue that it was Williams’ skepticism about organized religion rather than any desire to protect religious institutions that most presages constitutional religious disestablishment. Williams, pious Christian though he was, thought political life in a diverse community could be organized without reference to religion.

The majority opinion in the unanimous decision from the Court in the Hosanna-Tabor case affirming the constitutional status of the ministerial exception as a right of the church is supported by a curious mash-up of religious and political history. The villain of the piece is Henry VIII. Before the Act of Supremacy, we are told, the church in England had been free, at least since 1215, thanks to King John and Magna Carta. The church was free because King John had agreed that the church had the freedom of election to church offices. According to the Court, Henry VIII interrupted that freedom with his break from Rome. The church was not free again until the Puritans and the Quakers arrived in the New World. The freedom of the church, both in England during the time between King John and King Henry, and after 1607 in the English colonies, but particularly since ratification of the First Amendment, can be summed up, as the Court describes it, in the capacity of the church to select its own ministers, free of political interference.

Profound differences in Roman Catholic, Reformation, and Anabaptist ecclesiologies and understandings of the freedom of Christians are finessed in this breezy historical account. Slipping back and forth between “religious organization,” “religious institution,” “religious group,” and “church,” as well as posing the relationship of each to an also homogenized and ahistorical “state,” the Court manages to avoid the enormously fraught issue of what “the church” is and who speaks in its name at various times and in various places. King John, Henry VIII, James Madison, and William Penn, members of very different churches, are all understood to be speaking of the same special freedom for “the church” to select its own ministers.

Church history stops then for the Chief Justice in 1791. After the truncated account of English church history, what is most striking in his opinion is the entire lack of acknowledgment of the remarkable changes to the churches that occurred in the American colonies. Disestablishment, division, revivalism, populism, and immigration profoundly changed American religion. After 1791, official Americans, when speaking of American religion, arguably can no longer descriptively—or constitutionally—speak, as the Court does, of “the church” and its rights. The church had been disestablished.

Precedent for the majority’s reading of the rights of the church is also found in what are known as the church property cases, a set of US cases that address disputes over future ownership and use of churches when their congregations have a split in doctrine. This is a complex line of cases but one difficulty with using the church property cases as establishing the right of “the church” to choose its ministers is that, by definition in such cases, there are at least two groups of people who lay claim to a right to define who is a minister and to choose their own minister. In each case, after the courts decided the issue, one group did not get to select its own minister or it had to abandon the church in question and found its own new congregation in order to do so. In each case, the Court sided with what it took to be the hierarchy.

The Court concludes this section of its decision with an announcement of the rule that “‘the First Amendment commits [resolution of the property cases] exclusive­ly to the highest ecclesiastical tribunals’ of the Church.” Citing its decision in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, the Court explains that the First Amendment “permit[s] hierarchical religious organi­zations to establish their own rules and regulations for internal discipline and government, and to create tribu­nals for adjudicating disputes over these matters.”

Evidence for the Court’s transcendent ecclesiology, that is, its theory of the church and of church governance, can also be found in the way it distinguishes Smith—the peyote case. Smith held that the free exercise clause of the First Amendment does not provide a constitutional exemption for religiously motivated persons from laws of general application because secular laws fall equally on the religious and the non-religious. The alternative, as Justice Scalia explained in his decision for the majority in Smith, is that each person would be a law unto his own. The Smith rule does not apply inHosanna-Tabor, the Chief Justice explains, because, the issue is not one of the right of religious individuals to a special exemption from neutral laws—a right defended by many as being founded in the respect accorded to individual conscience in liberal legal theory—but of the right of “the church” itself:

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

It is worth looking at this paragraph very closely. What the Court says is that while the free exercise clause of the First Amendment provides no constitutional exemption from laws of general application for individual believers who engage in “physical acts” consistent with their religious beliefs—what many Christians term sacraments—the establishment clause provides an exemption for “the church” from such laws because by interfering with church governance the Court is interfering with “the faith and mission of the church itself.”

Here the Court speaks of the doctrinal priority of “the church,” and presumably, therefore, of its current earthly would-be representatives. Acknowledging that the ADA would seem to be a law of general application from which religious actors would not be exempt, Roberts explains that Smithconcerned the constitutional status of “only outward physical acts.” The Court here seems to be saying that, as Douglas Laycock, representing Hosanna-Tabor, did at oral argument (see my previous post), that “the church” is prior to the sacraments because the church forms the consciences of individuals. Preserving the hierarchical discipline and right to autonomy of the church is structural to the US Constitution evident in the priority which disestablishment (read as a rejection of Henry VIII’s rejection of the Pope in the Act of Supremacy) has to free exercise in the ordering of the religion clauses in the First Amendment itself, while acts performed in obedience to the religious conscience of the individual must bow to secular law.

By reading its version of church history into the First Amendment, the Court is enabled to give priority to the rights of some Christians through its evocation of “the church.” But that history also enables a denial of rights to other Christians as well as to non-Christians. Freedom from hierarchical church discipline arguably accorded to American Christians by the religion clauses is disregarded in favor of a strong assertion of the rights of the church.

Most significantly, though, in the current moment, is that there is arguably no analogy to “the church” in its mystical sense outside Christianity. While other religious communities speak of the body of the faithful in various ways, the Court’s opinion would seem to suggest that its doctrine is tightly and very specifically bound to a history of the Christian church and its assertions of its rights in the context of a particular reading of English history.

Founded in its reading of English church history, the constitutional right articulated by a unanimous court in this decision is “the freedom of a religious organization to select its ministers.” While the Court acknowledges that it might occasionally prove difficult to decide who qualifies as a minister for these purposes, it nowhere mentions the difficulties of determining what a religious organization is. Justice Alito’s concurring opinion, evincing a careful concern for the Christian exclusivism of the majority opinion, begins the project of expanding the discussion beyond the church. “Minister,” Alito states, is a term that is mostly limited to the Protestant churches. His solution to this problem is to define minister functionally and universally, assuming that such a role can be found in all religious traditions—and beyond.

Alito, with the EEOC, sees the rights of religious organizations with respect to ideological control of their members as similar to that of all other voluntary associations, a right founded in the freedom of association expressed in the First Amendment, not in the rights of religion: “Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.” This turn to the voluntariness of American religious life corresponds much more closely to what disestablished religion looks like in the United States today and to how most Americans understand their relationship to religious communities, one not of top-down hierarchy but one of bottom-up participation. It is also rooted in another reading of the history the Majority tells, one that tells a story of the freedom of Christians, and eventually of non-Christians as well. It is an understanding that sees Ms. Perich as the possessor of rights, not “the church.”

 

Response to N.Y. Times: “A Risk Even for the Majority” by Professor Winnifred Sullivan

On December 22, 2011, as part of its Room for Debate series, the New York Times invited several experts on religion to answer the question, Is Americans’ Religious Freedom Under Threat?  Professor Winnifred Sullivan, the Director of UB’s Law, Religion, and Culture Program was one of the debaters on this issue.  Her response, A Risk Even for the Majority, is posted here.

Workshop: Legal Forms of the Religious Life

“Legal Forms of the Religious Life” by Helge Årsheim, visiting PhD student from University of Oslo

When: Friday, December 9, 12:30 pm.

Where: Baldy Center for Law & Social Policy, 509 O’Brien Hall, Conference Center

Helge Arsheim,a PhD student and Baldy Center Scholar, discusses how international human rights law regulates religion in two distinct ways:  as a prohibited ground for differential treatment, and as part of the freedom of thought, conscience and belief. Based on a review of 50 periodic reports to five UN human rights committees, he argues that local configurations of religiosity have important and overlooked impacts on the implementation of these regulations in domestic law. While religious leaders and institutions perform vital social services in states like Suriname and Senegal, they simultaneously promote the supremacy of religiously derived norms and procedures conflicting with human rights treaty provisions. Human rights committees are divided on how to handle this double role, and create separate discourses on the proper role of religion in society that potentially undermine the supposed universality of the human rights enterprise. This paper is a preliminary test of the analytical framework he intends to use in a larger scale analysis of the entire reporting output to the committees from 1993 to 2010.

Lecture: “Biblical Models of the Islamic Foundation Narrative,” By David Powers (Cornell University)

Monday, Oct. 24, 4:00 p.m.
830 Clemens Hall, University at Buffalo (North Campus)
Co-sponsored by the IJTH, the Humanities Institute, and the Gordon and Gretchen Gross Professorship of Jewish Studies.

David S. Powers (Ph.D., Princeton, 1979) is a native of Cleveland, Ohio and long-suffering Cleveland Indians fan. He received his Ph.D. from Princeton in 1979 and began teaching at Cornell in the same year. His courses deal with Islamic civilization, Islamic history and law, and classical Arabic texts, and his research focuses on the history of Islamic law and its application in Muslim societies. Powers is the author of Studies in Qur’an and Hadith: The Formation of the Islamic Law of Inheritance (California, 1986), Law, Society, and Culture in the Maghrib, 1300-1500 (Cambridge, 2002), and Muhammad is Not the Father of Any of Your Men: The Making of the Last Prophet (University of Pennsylvania, 2009). He is founding editor of the journal Islamic Law and Society and Sectional Editor (Law) of the third edition of the Encyclopaedia of Islam.

Rethinking secularism: Going to law

This piece was originally posted in The Immanent Frame.

Last week, in the first week of its October 2011 term, the U.S. Supreme Court heard argument in a suit brought by the Equal Employment Opportunity Commission charging the local branch of the Missouri Synod Lutheran Church with illegal retaliatory firing of a Michigan parochial schoolteacher under the 1990 Americans with Disabilities Act. The ADA mandates an end to discrimination against persons with disabilities across a wide range of contexts and is considered a high-water mark of American civil rights legislation. The Church, supported by a wide array of other interested religious organizations, claims immunity from such legislation.

The schoolteacher, Cheryl Perich, taught fourth grade in the Missouri Synod Lutheran Hosanna-Tabor School in Redford, Michigan. In the summer of 2004, after several years of teaching, she developed a serious illness that prevented her from working. Although she tried to return to work in January 2005, the school asked her to resign. She threatened to report the school’s treatment of her to the EEOC and was subsequently terminated. Perich claims that she was fired for exercising her ADA rights. The school says she was fired because she refused to conform to church discipline. Going to civil law is considered a serious breach of Missouri Synod doctrine.

When the EEOC did file suit in federal court, the Church successfully argued to the U.S. district court that the “ministerial exception,” a legal doctrine said to be based both in statutory exemptions for religious employers in Title VII and other civil rights legislation as well as to flow from the combined action of the free exercise, no establishment, and freedom of association provisions of the First Amendment to the U.S. Constitution, deprived the federal court from assuming jurisdiction over the case. In other words, as the lawyer for the Church asserted to the Justices in the high court, under U.S. law, even though most of her day was spent teaching secular subjects, because Ms. Perich was formally commissioned as a “called teacher,” or minister, under Missouri Synod Lutheran doctrine (the only way she could attain tenure), her only forum in which to make a claim for unjust treatment was the internal church dispute resolution process. By deciding to accept a position as a teacher in a church-related school that defined her job in ministerial terms she had given up her rights as an employee under federal and state employment discrimination laws. She had effectively left the jurisdiction, legally speaking, at least for some purposes. She had put herself beyond the reach of secular law. As Church’s lawyer argued to the Court last week, “she couldn’t go to civil court if she’s a minister. She could have gone to the synod.” Her remedy was in the church courts.

The ministerial exception is a doctrine developed in the lower federal courts—one that goes beyond the statutory exemption within the ADA itself that allows religious organizations to preferentially hire their own co-religionists to disable the courts from considering employment issues related to ministers at all. The Supreme Court has never before decided a case under, or even affirmed the existence of, the ministerial exception, so this will be a much watched-for decision.

The transcript of the argument in this case provides an opportunity to reflect on the terms in which religious accommodation is being argued today in the U.S. and the extent to which the religion clauses demand formal judicial deference to an alternative normative order; that is, how and whether, in the peculiar alchemy of their jurisprudential history, an eighteenth century religious politics can be asked to serve a twenty-first century one.

The religion clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These words are understood today to guarantee the rights of individuals to freely choose their religious opinions and to prohibit government from funding or mandating core religious activities such as worship and proselytizing. In recent decades, the Court has seemed to favor a hands-off model of religion clause jurisprudence, finding, on the one hand, that religiously motivated folks are usually subject to the same laws as everyone else (absent a showing of intentional discrimination, viz. Employment Division v Smith); and, on the other, that they may bid for government funds on the same ground as everyone else (as long as they abstain from coercive proselytizing, viz. Agostini v. Felton). Further, in Hein, the Court has recently implied that church-state separation no longer demands an establishment clause exception to the standing rules in taxpayer cases. One effect of this jurisprudence has been to shift religious lobbying and law-making to the legislatures and lower courts.

Hosanna-Tabor is interesting in part because it brings to the fore a troublesome left-over issue for Americans. To what extent does religious freedom imply a need for formal legal recognition of churches at all? Can American churches manage on their own as private voluntary associations of like-minded individuals worshipping together under the laws that govern other private associations; or, do they need, or does the Constitution demand, more robust government support, even a ceding of sovereignty within certain areas, allowing them to act as small state-like institutions, enforcing their own laws?

A radical version of U.S. disestablishment would suggest that churches in the U.S. are, and have from the beginning been, understood to be entirely voluntary and private organizations that survive or not due to the enthusiasm and pocketbooks of their congregants (and God’s will), not public institutions legally defined and supported by the state. State-supported churches with their own jurisdictional domains were the common model in Europe. Arguably it is that model that Americans have been trying to get away from for several hundred years. The ministerial exceptions, and other lingering legal privileges for American churches, particularly the most legal-minded of them, seem, at times, to be vestiges of that older European model.

These are complex issues, particularly given the religious diversity of the U.S. Let us listen in on last week’s argument in the Supreme Court. It was a remarkably confusing conversation. What exactly is the ministerial exception understood to accomplish? Is that something most Americans want to accomplish?

One of the striking aspects of the argument last week was the extent to which, although there was much discussion of the difficulty and unavoidability for the courts of defining who is a minister, both the lawyers and the justices accepted as the limiting case the Catholic Church and its restriction of priestly ordination to men. It seemed for many present that whatever rule was arrived at had at the very least to preserve the Catholic Church from being forced to accept women into the priesthood. Even the lawyer for the government, the deputy solicitor general, kept backing off from a strong assertion that churches must be subject to law respecting retaliation to the same extent as other private associations as soon as she was pressed to consider the Catholic case. For example, see the following interventions, made by various justices and lawyers:

JUSTICE BREYER: So the fact if they want to choose to the priest, you could go to the Catholic Church and say they have to be women. I mean, you couldn’t say that. That’s obvious. So how are you distinguishing this?

MS. KRUGER: Right. We think that both the private and public interests are very different in the two scenarios. The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.

****

CHIEF JUSTICE ROBERTS: On the other hand, the — the belief of the Catholic Church that priests should be male only, you do defer to that, even if the Lutherans say, look, our dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic.

MS. KRUGER [Acting Deputy Solicitor General]: Yes.

***

JUSTICE SCALIA: Would you — would you allow the government to go — go into the — into the dismissal of the Catholic priest to see whether indeed it — it was pretextual?

MS. KRUGER: I think the answer is no, Justice Scalia –

***

JUSTICE SCALIA: Would you—would you—take the firing of a Catholic priest example. Does that get into the courts?

MR. DELLINGER: No, it doesn’t.

***

MR. DELLINGER [representing Ms Perich]: Well, in our view, if that was the test, then we would say that the court of appeals was correct in holding that she was not a minister, and the reason — the principal reason is she carries out such important secular functions in addition to her religious duties -

CHIEF JUSTICE ROBERTS: I’m sorry to interrupt you, but that can’t be the test. The Pope is a head of state carrying out secular functions; right. Those are important. So he is not a minister?

Repeatedly the Catholic example was reached to as the test case. Undoubtedly that is the case that most of the justices know best, but there was also a certain privileging of the Catholic Church as exemplary.

Lawyers for the Church argued that the ministerial exception is necessary because, if the employment relationship between a religious organization and its employees were subject to civil rights law, there would be a fundamental threat to religious institutions and their constitutional independence from state regulation. There are stronger and weaker versions of this need for what is sometimes termed “church autonomy.” Some in the courtroom seemed to think the ministerial exception could be limited to what they thought were obvious cases—what they called the hiring and firing of priests, pastors and rabbis. Others, inside the court, and out, would claim a larger sphere of sovereignty for church jurisdiction.

Are the U.S. civil rights laws really a threat to the continued male clericalism of the Catholic Church? That concern seems misplaced. The relationship of the Catholic priest to the Church is, at heart, not an employment relationship. A man becomes a priest through the sacrament of ordination, a religious ritual which confers an “indelible” mark, under canon law:

Canon 1008. By divine institution, the sacrament of orders establishes some among the Christian faithful as sacred ministers through an indelible character which marks them. They are consecrated and designated, each according to his grade, to nourish the people of God, fulfilling in the person of Christ the Head the functions of teaching, sanctifying, and governing.

Canon 1024. A baptized male alone receives sacred ordination validly.

He is subject to the supervision of his Bishop in his exercise of his office. No one argues that it would be constitutional for Congress or for a court to force the Catholic Church to ordain women. (And the EEOC was not seeking reinstatement of Ms. Perich to her ministry in this case.) The conferring of sacerdotal authority is a private act in the U.S. Churches do not need special exceptions to protect that. The difficulty comes when churches act as public institutions, such as when they hire people to discharge public, secular, duties such as school teaching. Then the public interest in protecting employees from discrimination and retaliation comes into play. Then the churches’ larger claims to special institutional autonomy become evident.

If the court is to exempt churches, as employers, from secular law, it is inevitable that they will be required to decide who is a minister and who is not, as was acknowledged repeatedly in court. Courts have often said that they don’t want to do that and yet they don’t seem to quite have the courage to walk away from the special protection and corresponding public role that churches and ministers enjoy—and the inevitable line-drawing that must be done. The Church’s lawyer was ready with a definition of a minister that he thought would be easy for the courts to administer:

MR. LAYCOCK: A minister is a person who holds ecclesiastical office in the church or who exercises important religious functions, most obviously, including teaching of the faith.

What are important religious functions? Among other things, it is quite striking that in 2011 an argument about giving special privileges to religion could proceed using only Christian language—as if churches and ministers exhausted the possibilities of religious leadership in the U.S. today. Everyone in the Court spoke of Christians and Christian churches and Christian ministers. Indeed they seemed to veer toward the higher liturgical end of the spectrum even among Christians. It does seem ironic, at the least, that among the thousands of religious groups in the U.S., the hierarchical churches might be given the strongest legal protection under these laws.

There are thousands of American laws giving special legal privileges to churches and to ministers. Many of these are extended well beyond the historically established churches to persons and institutions of a variety of religious commitments. When they support the autonomy of religious institutions in the disciplining of their members they tend toward the support of alternative normative orders. While individual conscience under Smith must bow to secular neutral laws of general application, church autonomy laws would require individuals also to bow to ecclesiastical law in a variety of contexts. Professor Laycock explains why this is necessary, as a political theological matter:

MR. LAYCOCK [for Hosanna-Tabor]: It’s not that institutions are different from individuals. It is that the institutional governance of the church is at a prior step. Smith is about whether people can act on their religious teachings after they are formulated. The selection of ministers is about the process by which those religious teachings will be formulated.

The presumption under this exception seems to be that churches must be protected by the state because it is in churches that individual consciences are formed. Most cases under this exception involve schoolteachers. The ministerial exception assures that children will be taught by schoolteachers who are under church discipline and that the church will exercise a public ministry with respect to those children. This is a robust claim for legal pluralism.

While most Americans undoubtedly believe that the government should not tell churches who should exercise religious leadership, arguably it is also the case that most Americans think that ministers are not the last word on what religion and moral formation is about—that the life of religion is not in the rules of established churches but in the faith-filled spiritual life of the people who only occasionally listen to their pastors, rabbis, priests, monks, gurus, or other would-be spiritual leaders—anyway.

Shakeela Hassan

This is post by by Winnifred Sullivan was originally posted in freq.uenci.es.

In December 2010 Dr. Shakeela Hassan, retired University of Chicago anesthesiologist, attended a Lunch Event of the Inner-City Muslim Action Network (IMAN) at the Hyatt Regency-McCormick Place in Chicago, one of many such events she attends as a leading Chicago philanthropist. She picked up her table number. Number 22. Not number 1, she thought, and not number 165. Somewhere in the middle. She liked that. When she found her table it was right in front of the speaker’s podium. Three women were already seated at the table. They motioned to her to join them. Then Keith Ellison, the first U.S. congressman to identify as a Muslim, Democrat of Minnesota, joined the table. Ellison and Hassan had not previously met. As they talked, men and women came up to Hassan greeting her and hugging her. Finally, Ellison said, “You seem to know everyone.” “Yes,” she said, “they are my faith and my family.”

“They” are the wider community of the Nation of Islam, some still members, some not. “They” are those who welcomed and nurtured Hassan when she came to the U.S. from Pakistan as a young doctor in the late 1950s. Dr. Hassan came to take up an internship at Northwestern University Hospital, eventually choosing to specialize in anesthesiology, and then to a teaching appointment at the University of Chicago Hospitals. As a young woman in her early twenties, new to Chicago, and not entirely comfortable with American student life, her husband-to-be Zia Hassan introduced her to Elijah Muhammad, as well as to Muhammad’s wife, Sister Clara, and their eight children.

As she sees it now, looking back half a century, as she began her professional career she also launched her spiritual path. Dr. Hassan’s life as a Muslim in the United States displays unexpected conjunctions challenging us to enlarge our assumptions about the Nation of Islam, its forms of spirituality, and the ways its practices of food and dress produce and cultivate forms of piety across cultures, continents and generations. Now working with Bill Kurtis to produce a film about sounds in the three Abrahamic traditions, Dr. Hassan traces the beginnings of her interfaith sensibility to the generosity and hospitality of “them”—Elijah and Clara Muhammad, her first U.S. family in faith (as well as the nuns who welcomed her at St. Mary of Nazareth hospital in Chicago where she also worked as a young resident physician.)

Zia Hassan, Hassan’s husband, had met Elijah Muhammad through his older brother, who had preceded him to the U.S. Zia’s brother, a thoracic surgeon, had himself met Elijah Muhammad when he treated him as a patient, and had been invited to his home. At that time, Zia’s brothers-in-law were the Pakistani publishers of the most widely sold English translation of the Qu’ran. When Zia Hassan’s brother mentioned to Elijah Muhammad that his younger brother would be coming to the U.S. to study, the leader of the Nation insisted on having them met at the airport in New York City. The young man Elijah Muhammad sent to greet Zia Hassan and his brother that day was none other than Malcolm X.

Shakeela Hassan remembers many evenings sitting at the dining room table in Elijah Muhammad’s house. Sometime in the late 1950s he said that he wanted a special hat for a special occasion: a fez. As they sat talking, she drew a hat on a piece of paper, combining a Pakistani style with what she proposed as symbols of the Nation of Islam, namely a Crescent and Star woven into the design motif. She bought fine velvet fabric at Marshall Field’s department store, fabric which she sent back to Lahore with friends who arranged for the embroidery to be applied to her specification. It was the first of many she would have made in different colors:

Some of Shakeela Hassan’s fezes

When she speaks of Elijah Muhammad and Sister Clara today, now some fifty years later, Dr. Hassan speaks warmly of their hospitality—of how food was brought to her house when each of her children were born—of how she learned to make a soup that she still makes in quantity to share with friends and family—of how Sister Clara arranged for clothes to be made for her at the Nation’s clothes factory, jackets and long skirts that Sister Clara thought suitable and dignified for Shakeela Hassan to wear as a woman doctor in a hospital. Some of the clothes that were designed for the women of the Nation were, in turn, modeled on the shalwar kameez that Shakeela had worn when Sister Clara first met her. The long tunic tops and “baggy pants” of her home country now became the inspiration for the distinctive dress of the women of a new American religious movement.

Zia and Shakeela Hassan were first-hand witnesses to Elijah Muhammad’s role in shaping the destiny and determination of Cassius Clay to become the world’s best and foremost boxing legend as a convert to Islam. Shakeela recalls how lovingly and gracefully Sister Clara would attend to details of table etiquette to taking turns in table conversations with the dynamic young guest, Ali, at the family dinners, where the Hassans were frequently present.

Asked about what it was like to know Malcolm X, Dr. Hassan responds:

I . . . met Malcolm and his wife Betty, in the late 1960s. She was a nurse. I’ll never forget what great pride Elijah Muhammad took in introducing us to one another because we were both healthcare professionals! There was such a simple elegance in just being able to share our experiences working to care for the sick. But more than that, this immigrant new kid on the block found the greatest of human comforts in the home of Elijah Muhammad: home cooked meals, love of elders and children, a strong family presence, and someone to look up to. At the time, the Muslim identity of our (Zia’s and mine) new ‘family’ was not as important as it became later in our relationship—later as my own identity as an American Muslim began to develop. What I will always cherish from that time is the vivid memory of a family who devoted themselves to giving their community a deep sense of self-respect, rooted in a commitment to self-improvement and self-empowerment—against tremendous odds and in the midst of horrible discrimination and prejudice. To take charge and be themselves was an awesome lesson in grass root participation—a vision of immense humanity and community.

She continues:

I can remember being invited for the first time to the home of Elijah Muhammad and his wife Sister Clara Muhammad. Zia and I were always welcomed with open arms. Not only were we invited to be at table with the family, but Elijah Muhammad treated us like family. Not unlike my own dear father, he entertained any and all questions from a young Pakistani woman doctor whose curiosity never allowed her to remain silent. As for Sister Clara, she was nothing short of a mother to me. Whatever she did, she always understood herself to be setting an example for others—from the way she meticulously arranged the contents of her purse and attended to the minutest details of keeping a clean home ‘where the angels would feel welcome,’ to the loving way in which she prepared meals for her family and guests. As dignified a woman as she was, however, she was never stiff or aloof. My fondest memories are her teaching me how to make her famous navy bean soup—something I make to this day for her grandchildren who are like children to me.

Sister Clara Muhammad’s Bean Soup

2 pound bag small navy beans
1 pound bag lentils
1 large onion—chopped
1 sweet green pepper—chopped
1 bunch celery—chopped
1 small can tomato paste
1 cup oil
1 tsp sugar
1 tsp rubbed sage
1 tsp black pepper
1 tsp paprika
salt to taste

Soak beans and lentils well covered with water over night. Rinse and cover with fresh water together with all other ingredients. Boil and then simmer till beans are tender. Serve whole or pureed in a food processor to a course or smooth grind. The prepared soup can be saved frozen in plastic containers. To serve add boiling water to achieve desired consistency.

Shakeela Hassan’s recipe remarks:

Sister Clara’s favorite was the smooth grind. She introduced me to the food processor of its time—the Foley Food Mill. I still have that hand-held machine that gave me the pleasure to know I could follow Sister Clara’s recipe with perfection. Pleasure and pride and my purpose was to feel good about healthy eating and inclusion of whole grains, proteins and food values in terms of vitamins, minerals thru the use of lentils, fresh vegetables and preparing it with patience and love to make that taste worth its weight in grains and gratitude. Croutons and extra sharp cheddar cheese cubes and Tabasco hot sauce are the memorable ingredients from Sister Clara’s times. Sister Clara served her soup with home made whole wheat bread—sliced and slow oven-toasted accompaniment with a smile—her smile was meaningful to convey—the message of good eating for health and human reasons to share with love, generosity and gratitude. To this date I make about twice a year a very large amount to share with my family and have it in the freezer ready for serving ourselves or to visiting family and friends! Thank you Sister Clara—some day I hope to write the Bean Soup Legacy and a poem in sharing the memories and moments of learning lessons in life, love and sharing any and everything!

Since her retirement, Dr. Shakeela Hassan has worked to foster greater understanding among Jews, Christians, and Muslims—seeing this work both as an extension of her healing work as a physician and as honoring the hospitality shown to her as a young immigrant woman by Elijah Muhammad and Sister Clara and to honor the grassroots movement of its kind in achieving social justice and civic responsibility.

Event: “Museums and Censorship” panel discussion at Albright-Knox, September 25, 2011

UB Law Professor Winnifred Fallers Sullivan and Jonathan Katz, Director of the Doctoral Program in Visual Studies at the University at Buffalo, will participate in a debate on Sunday, September 25, in the Albright-Knox Art Gallery about issues that resulted from the National Portrait Gallery’s censorship of the exhibit “Hide/Seek” after complaints from conservative lawmakers. [Read more information on the event]

Fall Lecture Series at UB

The UB Humanities Institute and the Institute of Jewish Thought and Heritage is sponsoring the following lectures this fall:

• Sept. 19, Russell T. McCutcheon, University of Alabama, “Religion Before ‘Religion’? On the Persistence of Imagining Religion”
• Oct. 10, David Powers, Cornell University, “Biblical Models of the Islamic Foundation Narrative”
• Nov. 7, Herb Berg, University of North Carolina, Wilmington, “Allah(s) and His Apostle(s) in Mecca and Detroit: Islamic Origins, Nation-of-Islamic Origins, and Hypocrisy in the Academic Study of Religion”

All lectures will take place at 4:00 p.m. in Room #830 Clemens Hall, University at Buffalo (North Campus).

Questions? Contact Aaron W. Hughes,
Associate Director, Institute of Jewish Thought and Heritage
Gordon and Gretchen Gross Professor of Jewish Studies
(716) 645-8426, aaronhug@buffalo.edu

Helge Aarsheim to be a new Baldy Center Exchange Scholar

Helge Aarsheim, a PHD candidate from the University of Oslo, Norway, will be spending the fall semester as an exchange scholar at the Baldy Center for Law and Social Policy.

Aarsheim holds a degree in religious studies from the University of Bergen, and has been awarded the Leiv Eiriksson Mobility Grant from the Research Council of Norway to support his work. Aarsheim will be working with a thesis on the concept of religion in international law, examining 20 years of state reporting to five UN human rights treaty bodies, and will receive supervision from the Director of the Law, Religion, and Culture Program, Winnifred Fallers Sullivan.