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Separating Religion and Government…But What Is Religion?: A Look at the US Supreme Court

The United States Supreme Court will hear arguments in a key religious freedom case, Espinoza v. Department of Revenue, in January 2020. In that case, the Court will decide whether a taxpayer-funded scholarship program can, even indirectly, fund a private religious school. The case has ignited a debate about no-aid clauses to religion in state constitutions and, more broadly, the separation of church and state. But is it possible ever truly to separate church and state? And how do courts decide what is religious–and therefore separable from government?

In this podcast, noted religious liberty lawyers Maggie Garrett (Americans United for Separation of Church and State) and Jennifer Hawks (BJC) discuss the Espinoza case before diving into other pivotal, recent decisions–including Burwell v. Hobby Lobby, Trinity Lutheran Church v. Comer, and Employment Division v. Smith–that raise questions about how courts define religion and religious freedom. We discuss how claims for religious exemptions offer insight into operating definitions of religion and the ways those definitions are predicated on sincerely held beliefs and/or actions (whether those actions take place within the four walls of a house of worship or beyond those walls). In other words, what do religious exemptions tell us about what counts as “truly” religious? Are beliefs alone protected? Or behaviors too? And how does a Court decide whether it has the authority to grant an exemption to a neutrally applicable rule or to forbid actions linked to sincerely held beliefs, religious or not? Along the way we discuss taxes and religion, dignitary harm, the “religious marketplace” and more.

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Separating Religion and Government . . . But What is Religion? A Look at the US Supreme Court

Podcast with Maggie Garrett and Jennifer Hawks (6 January 2020).

Interviewed by Benjamin Marcus

Transcribed by Helen Bradstock.

Audio and transcript available at:

https://www.religiousstudiesproject.com/podcast/separating-religion-and-government-but-what-is-religion-a-look-at-the-us-supreme-court/

PDF for download

Benjamin Marcus (BM): Hello, and welcome to the Religious Studies Project. I’m here today with Jennifer Hawks and Maggie Garrett to talk about religion and law in the United States. What qualifies religion, and what merits religious freedom protection? We’ll discuss those topics and more by taking a deep dive into the cases before the Supreme Court in the term beginning in October 2019. We’re grateful to have two legal experts here with us today, to help us understand what religion means in the United States courts. Jennifer Hawks is the Associate General Counsel at the BJC. She provides legal analysis on church-state issues that arise before congress, the courts and administrative agencies. Before coming to the BJC, Hawks was the director of advocacy and outreach services for the Family Abuse Centre in Waco Texas, where she conducted a legal clinic and led educational programmes. She previously worked for two judges in the state of Mississippi and served as a staff attorney for the state department of Human Services. Hawks also served in both paid and volunteer ministry positions in Tennessee, Mississippi and Texas. A graduate of Mississippi College and the University of Mississippi School of Law, Hawks earned a master of Divinity degree from George W. Truett Theological Seminary at Baylor University She’s a member of the US Supreme Court, Texas and Mississippi bars and she was ordained into the Gospel Ministry by McLean Baptist Church in McLean, Virginia. Maggie Garrett is the vice president for public policy for Americans United for Separation of Church and State. She represents Americans United before Congress, and in the Trump administration, and she oversees the state legislative programme. For the last eight years she has served as the co-chair of the National Coalition for Public Education, a coalition of more than fifty national organisations that opposes private school vouchers. She’s also the chair of the Coalition Against Religious Discrimination. And before Maggie joined the AU’s legislative department, she served as the legislative director and staff attorney at the ACLU of Georgia, where she litigated high-profile cases on issues including the separation of church and state, free speech, reproductive rights and voting rights. She was also a fellow at the ACLU of Alabama where she participated in litigation to remove Judge Roy Moore’s Ten Commandments display from the Alabama Supreme Court. Maggie graduated from Hamilton College and the George Washington Law School. So, two fantastic people who can walk us through this Supreme Court term and talk to us about religion and law in the United States. So we’ll begin with a question for Jennifer, which is really about a bit of context. So tell us a little bit more about the case before the Supreme Court, this term, that deals with religious freedom. I know that while the Supreme Court receives thousands of requests to take up cases each year, they only hear about two percent of them. So what is the religious liberty case that they’re taking for this term?

Jennifer Hawks (JH): Well, it’s a pleasure to be here. And while the court has taken one case already, it’s important to note that the court could take additional cases as the year progresses – they take cases throughout the year. But the case for this next year is Espinoza versus Montana Department of Revenue. And it’s a case involving a state tuition tax credit programme, which is a type of voucher where state money ends up supporting financially religious and non-religious private schools. And the Montana Supreme Court struck down the programme, the parent who brought suit to enforce the programme appealed to the Supreme Court, and the US Supreme Court took the case. And we’ll have arguments later on in the term.

BM: Great. And, maybe Maggie, could you tell us a little bit more about the school voucher programme and how they operate it in the United States – what their role is in private and public education?

MG: Sure. So in the United States we have public schools, and that has been the primary way that we’ve funded schools over the years, for many years. But what’s happening recently is there is a real push to have private school vouchers – which essentially means that you take taxpayer dollars and you funnel them to private schools. And what happens is that it primarily funds religious schools. And the reason why is because religious schools are usually cheaper than secular private schools. And that is often because the religious entity that they are associated with will subsidise the education. And so they’re cheaper, and then private school vouchers predominantly fund them. And at issue in this case is whether or not you can have a tuition tax credit at all. Can you give money to a secular school and say “No. We’re not going to give money to a private school that’s religious”? So that’s really what’s at issue here. (5:00) For the first time, someone wants the Supreme Court to say that a state has to fund religious education if they’re going fund secular private schools.

BM: I imagine that one of the first questions by people who do want to support these tax credits going to religious school is that the US Constitution says that you shouldn’t favour one religion over another. You shouldn’t favour religion over non-religion, or vice versa. So why isn’t a tax credit that goes to a private non-religious school – or funding that goes to public schools – not favouring non-religion over religion? Or is that a false binary? Is it not so easy to say what religion is, and what is not religion?

MG: So traditionally, in the United States, we have said that freedom of religion means that no one is taxed by the government to fund anyone’s religion. So, as a Lutheran, I am not taxed to pay for Lutheran schools. I’m not taxed to pay for anybody’s religion, whether I agree with it or not. And that has really been the standard. And we have been slowly seeing the courts chip away at that. And we’ve been slowly seeing them say that, “It’s actually ok for you to fund tax dollars going towards religious education.” I don’t think that it is discrimination against religion to say that tax payer dollars are not going towards religious activities, religious education, religious learning. In my mind, establishing religion is really about funding religion education. That’s sort-of at the core of religion, right, is teaching your religion? Here we are teaching the religion to children and that’s sort-of the rock of the church is teaching young children, and raising them in the church. It is not, in my mind, discrimination against religion. It’s the government maintaining neutrality, and the government saying “We just stay out of it. We don’t fund it.” They get a lot of exemptions and then they also don’t get government funding.

JH: I would add, as a Baptist minister and a constitutional lawyer, that the government not funding religious schools and religious organisations is what has allowed religion to flourish in our country in a way that is unmatched in any other country. It’s up to us, as religious people, to fund our religious practices and to fund our religious communities, and to reach out to our neighbours to ensure that those communities continue. And so, because of this, the American church has to be responsive to the community around it. It has to find its place and its role. Because it’s not going to get a cheque every month from the government, whether people attend or not. So to fundamentally alter the way that our religious communities are funded would be very harmful to the communities themselves. Religious schools have a lot of freedom and autonomy that are not experienced by public schools or public charter schools, or other types of school systems. And it’s precisely because of that autonomy that we should want the maximum amount of separation so that religious schools are accountable to religious communities and not accountable to tax payers who could care less whether or not that religious community flourishes or dies.

BM: Right. So I’m hearing a lot of arguments for why religious freedom is good not only for government, but also for religious institutions. And the separation of church and state allows religious communities a great deal of autonomy. It allows them – as the argument often goes – to flourish in the United States. And that really, at root here – from what I’ve heard from both of you – is the question of taxpayer funding: that taxpayer funding should not flow to religious institutions. I think that brings up another case that was already argued at the Supreme Court and decided, which is the Trinity Lutheran case – which is being brought up in the arguments for Espinoza. So could you walk us through the Trinity Lutheran decision and what it meant for religious freedom? In part, I’m very interested in exploring, with Trinity Lutheran, where a court sort-of sees religion ending and some other kinds of programmes beginning. Or deciding whether the funding in that particular case was supporting a religious institution as a religious institution, or whether it was really supporting something else. So could you talk a little bit more about that please?

MG: Sure. So in Trinity Lutheran, at issue was a state grant. And a state grant would help public and private schools and other non-profit organisation purchase rubber playground materials. It was made from recycled tyres and so there was a grant programme. And the religious school applies for the grant and they, like Montana, have a constitutional provision that says that they can’t spend money to aid religion. (10:00) And so the State of Missouri says, “I’m sorry, you’re not eligible for this tyre . . . this playground grant.” And so they said, “Well, that’s really just a discrimination: that you’re funding other secular organisations, but you’re not funding us, simply because we’re religious.” Now I would argue that that’s not what was happening. What was happening was that the government was saying, again, “You’re a religious school. We don’t aid you. We don’t tax you.” And so there’s a separation of church and state. But what the court held was that they were being discriminated against. And they were being excluded from the programme because of who they are. Because they were a religious entity. The Court made clear, though, that this was a really narrow decision and that they were talking about playground materials which wasn’t a religious item. It wasn’t translated into religious activity. That this case was, “You can’t discriminate against them because of who they are.” However, the government could still take into consideration how the money would be used. I mean, I think that is really the distinction here, is that they’re not not-funding religious schools because they’re religious schools, but because that money would be used for religious education. And religious schools normally entwine religion throughout the school day. It’s not as though they teach one subject and then they take a break and they teach religion. It’s entwined in what they do. There’s Bible studies, there’s mandatory religious activities, etc. And so this would really be a case about funding the religious activities, the religious education. It’s not necessarily about who they are.

BM: And I think that brings up a question that I heard at least in different sort-of moot courts that were leading up to the Trinity Lutheran case, which were really people pushing at the question of: what is a religious activity? So, is maintaining a playground a religious activity? Is buying textbooks for your math class a religious activity? Is buying textbooks for religious studies class a religious activity? Is maintaining . . . . If there’s a generally-available fund of money to keep up historically significant buildings in a community, and there’s a church that’s historically significant building, can those funds be used to repair the pews in that church? And what generally-available activities or services are not available to religious institutions? Whether that’s the fire department if there’s a fire . . . . Those are the kinds of questions that I was hearing. And I think what they’re getting at are questions of what is religion qua religion. What is religion really? And what is a secular activity or a secular programme or service? So, could you talk a little bit more about that? How did the Court come down on those questions? Did they have any answers to those questions? Or what are your thoughts about those questions?

JH: Well, in my opinion, the Court largely overlooked the establishment clause problems. And so they did find that this was just a public safety programme. So they compared it to something like a fire department responding to a fire in a church. Or a police department responding to some type of criminal activity happening at the church. And so they said, “It’s the same thing. And there’s nothing particularly religious about the playground.” I would add a fact to Maggie’s summary, that this was not an independent religious school. This was a ministry of a church. So it was a church that had a preschool and it was that church ministry that had applied for this grant. And so BJC filed the brief and we really looked the history of these provisions. And we looked at why it’s important to have the separation. And we didn’t want to get into the question of: when can a government come onto a church property and say, “This is secular, so we get to fund it and we get to regulate it. This is religious, so we don’t.” And walk through your church property like that. We want churches to be able to have their independence and autonomy, and be able to make those decisions, and use their property how they see best fit to carry out their religious mission. And so we think that Trinity Lutheran muddied that water by saying that not only could the church apply for it, but that the state needed to pay them the money, contrary to their own state constitution provision which had been enacted in multiple parts of its constitution. I think they had four different provisions that talked about not aiding . . . not using tax payer money to aid religious institutions.

MG: Yes. And these are like the really hard questions. And not punting, but . . . you know, as a church-state separationist I feel like the courts have kind-of created this problem for us, at this point (15:00). So there used to be much more strict lines. And therefore you didn’t have to ask these questions of, is a playground religious? Or, are they going have religious ceremonies in the playground? Or, do they read religious books on the playground? It was much, much clearer – to prevent us having to get into those questions. And then as the courts – not to blame the courts entirely, I mean, Congress and states have been pushing the court to move this way – but as the court has been slowly chipping away at the wall of separation it is creating more and more problems. And it’s interesting because we kind-of get to the problem of “We can’t really say if it’s religious or not, so we have to allow it.” And so it’s almost by creating the problem, it’s inching along to further erode the separation of church and state. We created this problem and now we’re in a big mess.

BM: So maybe that’s a good opportunity to bring up another case that’s been decided in the last few years, the Hobby Lobby case, which held that closely-held, for-profit corporations could use RFRA to deny healthcare benefits to their employees even though the benefits were required by law. And part of the holding was that the Court said that the government did not make a compelling enough case why closely-held, for-profit corporations should be treated differently from religious non-profits. So could you talk a little bit more about that case, and its implications for what the religious organisation is?

MG: Sure. So the Religious Freedom Restoration Act – RFRA – is a federal statute that is supposed to protect religious freedom. The idea is that if your religion is burdened, you can go to the government and say that this government law or activity is burdening your religion. And the government has to have a compelling interest, and it has to be the least restrictive means for them to push the law on you. I know that’s a lot of legalese. But the question in that case was: does RFRA apply to corporations? And many of us said, “No. It doesn’t apply to corporations.” Like, what religion does a corporation have? It doesn’t. It was not envisioned that a corporation like Hobby Lobby, that has craft stores around the country, could get out of having to adhere to the law because they’re a religious organisation. So the Court really based that opinion in the statue itself. It said, “Let’s look at how they defined ‘person’.” They did a bunch of legal stuff, and said “‘Person’ included corporations, and there’s no reason why religious corporations are different than secular corporations. It applies to all corporations. They all get to use it if they say they have a religious objection.” And the danger there . . . I mean, I think that was dangerous to begin with. But now that is really seeping out into other areas of the law. So even if they were right – which I think they weren’t – that RFRA applied to Hobby Lobby, now the question is, what happens in other federal statute? So, for example, there is a federal statute that says that corporations can’t discriminate in hiring. And so then the question becomes . . . and there’s a religious exemption for that. So religious corporations can discriminate in hiring. And the Trump administration has been leaning towards, now, an interpretation that for-profit corporations, even there, could discriminate because they’re religious. So it is this complicated question, again, of where do you draw these lines? Is Hobby Lobby – who just happens to say “Our owners are religious” – do they get religious exemptions everywhere now? I remember back when the contraception regulations were being passed in the Obama administration. Someone said, “Well I think Taco Bell should be able to get an exemption from providing contraception.” And does it mean that MacDonald’s, and Taco Bell, and all these corporations . . . does it mean if you own a franchise of Taco Bell and you are religious, that you get to say, “Well, my Taco Bell is religious. And I get out of whatever I want, because I get a religious exemption.” I would say that far exceeds the line. But there are arguments today that that should be true.

JH: Yes. So I would agree that there are certainly groups that are looking to expand Hobby Lobby well beyond what the Court ruled. The Court ruled for Hobby Lobby in that case, because they found a win-win situation. They found the government had created this other programme and couldn’t explain why for-profit corporations couldn’t participate in that programme. So there was a way for the female employees, and female relatives of male employees, to get the contraception without it coming from . . . the Green family, in this case (20:00). I don’t think that that means the default position is that employers always win in these cases. But we certainly have people making that argument, and trying to espouse that as the true interpretation of Hobby Lobby, which we would both vehemently disagree with.

BM: So, I think you bring up so many interesting and important questions about what constitutes a corporation that’s able to claim an exemption: who gets to claim an exemption, whether it’s only limited to religions? So, for example, could you tell . . . ? Some of our audience might not be familiar with US case law, and how we treat these issues. Could someone who identifies as a humanist or an atheist – but sincerely held convictions that are as totalising as what we often think of as a religious world view – go before the court and claim an exemption from a neutrally applicable law, and say that it is grounded in a sincerely held belief, even if it’s not linked with a traditional religion? So I know that that’s been allowed in certain conscientious objection . . . for example in military service. Does it extend beyond that? Or could you talk about the conscientious objection cases that it does apply to?

JH: Well, in the conscientious objector cases the court looked at . . . again, went to the text of the statute. And they found that between various iterations that congress had passed, and had been enacted into law, Congress broadened the definition of who would be covered by religion. And so the court followed suit, and ensured that that protection was as broad as the language in the statue. And so these cases really depend on how we define words in statutes, and how we use them in context, and how we reference other statutes. So if Congress wants to pass a law with a very expansive definition of a religious person or organisation, there are many examples of that throughout the law that the courts have interpreted. The question is whether they could write something more narrow, that would exclude some groups. And that would be more difficult to do, especially given the other statues that seem to be on this path of towards increasing the number of people who can claim the ability to live out their beliefs, that that might be all-encompassing and similar to a religious belief or practice.

MG: Yes. In the conscientious objector cases, the idea was that it would apply to people who maybe didn’t say that they were religious but had a belief that was held as strongly and similarly to a religious belief. And some of the statutory things . . . I don’t know that there’s ever been a claim under RFRA where someone has tried to make that claim. I do think it’s interesting, though, that under RFRA and under some of the other laws, you can’t really – and I think this is right – you can’t really question whether or not it’s a real religious belief, right? So you can’t say – and again I use Lutheran, because it’s me, and so I’m not offending anyone – but you can’t say, “Maggie, what’s your religious belief? I’m now going to look and see whether your pastor says that your belief . . . .” And sort-of go up the chain of the Lutheran church, and the Lutheran doctrine and see if it all matches up. I could say, “I’m Lutheran”, and I could also say that my views completely are different than the traditional Lutheran church beliefs. Which is the way that it should be. The danger of course, though, is that now everyone who has any religious belief can come and say, “I’m going to challenge the law because, as applied to me, you know, it’s a substantial burden on my religion.” And I don’t often say that I agree with Justice Scalia. But Justice Scalia, many years ago, decided the Smith case – Employment Division versus Smith – and he was talking about religious exemptions, and the free exercise clause, and whether or not this test that is now RFRA is the right test. And he spoke about how there’d be anarchy because every person would be a law amongst themselves. Because they could sort-of say, “Whatever fits with my religion, now I want to get a religious exemption.” And, of course, it’s not like . . . RFRA isn’t a trump card. There is the other side balancing: is there a compelling interest, and is it narrowly tailored? But that is getting harder for the government to meet. And so, yes. That creates, again, this quandary that if we are saying that every person’s religious beliefs should be recognised under RFRA – if they say it’s a burden, and it’s a substantial burden and the court now sort-of agrees with them – what does this mean? Does it mean that we are getting ourselves into this . . . ? Well, we’re not quite there. I don’t mean to be too alarmist (25:00). But we’re moving down the line that Scalia is talking about.

JH: Well, and one of the things I always like to point out when I teach RFRA to college groups who come to visit BJC, is RFRA is, if you look at the statutory language, protects against a substantial burden on an exercise of religion. And I think sometimes exercise of religion has gotten lost. And people try to substitute religious belief with that. There is a big difference between exercising belief – and Congress, when the law was enacted, they chose exercise – and so that has to have some kind of meaning. And so I look forward to the day when the courts are looking at all parts of RFRA. And sometimes, you know, the religious objector needs to win. And then sometimes the religious burden just cannot be accommodated. But it should be a situation where we all have the ability to be able to come into court and be able to make our claim. But we have to look at all parts of the test, otherwise the test is not working in the balanced way that it was intended.

BM: Right. And that actually brings up a case that is not currently before the court, although certainly has been filed. So this is the Ricks versus Idaho Board of Contractors case in which someone says that for reasons of sincerely held religious belief, he doesn’t want to have to offer a social security number to the state in order to have a contract. So here we have someone who . . . it’s not a commonly-held religious belief, but it’s sincerely held by this particular person. So what, as we try to balance truly recognising that religious belief might be sincerely held even if it’s not commonly held, and recognising that the state has a compelling interest sometimes in asking people to do things that they don’t want to do, for reasons of sincerely held religious belief . . . how do we balance those two things? You mentioned the difference between belief and exercise. I know when I’m in spaces with a lot of, especially, conservative religious folks – and progressive – they say that a belief without the option to exercise that belief is not really a strong protection. That if you can’t act on a thing that you feel most strongly about, then that is that is certainly a substantial burden at some point. So if you’re a judge sitting before some of these decisions, trying to decide whether to force people to do what it is that they didn’t want to do, and saying, at the same time, “Here’s someone who believes in religious freedom”, how do you reconcile those two things in your head, or for the public? Do we just recognise that sometimes we abridge religious freedom, or that certain things we don’t necessarily consider as religious as others? So, for example, if someone says that they do . . . something that we think of as a core practice, something they do in a church or a mosque or a synagogue, I think it would be very difficult for a court to say that that wasn’t allowed. It would take a lot for them to say, “We are going to stop you doing that activity.” But as things leave the four walls of a house of worship, we often think that whatever activity is being conducted is not as religious as the activity in the church. So would you just walk us through, from a religious studies angle, how we think about religion and law, and where it becomes less and less important for the government to safeguard that particular act?

MG: So one of the things you were asking in that is, “If you were a judge, where would you start?” I would start with one of the questions that should be asked in the Establishment Clause, which is: are we giving a religious accommodation that is harming others? And I think there’s a basic civics class thing that we learn as kids which is: your rights end where my rights begin. And so at Americans United we always say, “Is this going to cause harm to other people?” And so I think that, right out of the gate, is one of the first questions you ask. So in the case about the social security number, is it causing harm to other people? I don’t know that case that well, but maybe it is, maybe it isn’t. In cases where it’s an issue of “Can I get out of a non-discrimination law?” So, I live in a state that says I can’t discriminate against LGBT employees and I say that that violates my religious beliefs. The question should be, if I give you that accommodation, what happens to someone else? And the answer is, they are discriminated against. And that is not . . . to me that is the end of the question, right? There is a dignity harm. There is a loss of a job (30:00). There is a loss of a promotion. And therefore you don’t get your religious exemption, because you are causing serious impacts on other people. That’s where I start.

JH: Yes. And my answer would be very similar. But I would also look at the harm to others outside of the religious community. So we all . . . as a Baptist I go to my church and there are certain expectations on me, as a member, that visitors . . . if Maggie were to visit my church with me on Sunday, she would not have those same expectations put upon her. And so if the exemption is primarily going to affect people who have voluntarily chosen to be part of that religious community, then I think there should be a thumb on the scale towards granting that exemption. But if the exemption is largely going to impact those outside of the religious community – those who have not voluntarily come to this belief or practice – then the government should look seriously at: how do we minimise this harm outside of the religious community? And if it cannot be minimised, then maybe it cannot be granted. But we have a long history of religious exemptions. So I think that’s something we always have to keep in mind. There are even people who say that our first exemption is in the constitution itself, when the president is allowed to swear or affirm an oath of office. Because, in our colonial days, our Quaker brothers and sisters could not swear an oath and so, in order to permit them to be able to run for the highest office in the land, an exemption was made so that the oath could be affirmed instead of sworn. And that obviously impacts no-one. It has no negative harm for someone else. So that’s an easy one to grant. The much more difficult cases are when the primary impacts of that exemption would be on someone outside of the religious community.

MG: Another line, I think, that becomes a clear line is when the religious organisation gets money. And this kind-of takes us, in a way, back to Espinoza – where they’re asking for government funds. To me, once . . . . The idea of religious exemptions for religious organisations, and the government staying out, is for them to have autonomy for them to make their own rules, you know. They’re kept separate. But once you take government funds voluntarily, to perform a programme, to get some form of a benefit to me, the government, now . . . you’ve sort-of lost your “I want to remain autonomous” argument. And now the government, I think, has the right to go in and say, “You have to go by government rules.” So if you take a voucher, a private school voucher in Montana or any other place, then you should have to adhere to the same rules as everyone else. You should not still get the religious exemption that you’re getting. You’re getting the religious exemption because you are religious and you want to maintain your autonomy. But if you get government funds you’ve already sort-of given up your autonomy, and you don’t get to get special exemptions at the same time that you get government money. This has been an issue since George W Bush’s years, about employment discrimination, where they put in place rules that say you can get government contracts and government grants so you’re taking money from the government to perform a social service, and then you are still allowed to have your own religious hiring litmus test. To me that is wrong. It is one thing for the Lutheran Church to be able to say “We hire Lutherans for certain positions” – obviously we hire a Lutheran pastor to be our pastor. It is another thing to say, “We want to get a government contract to provide services for the public and we still get to place our religious litmus test.” To me that’s a line.

BM: I think that’s a really helpful set of distinctions of how people can think about these issues. I’m curious, could you give us just some easy examples where you maybe both agree, “This is an obvious case where an exemption should be granted”? I think it’s helpful. Often we spend a lot of time talking about the limits of exemptions, and where they start perhaps creating dignitary harm or leading to improper use of government funds. What are some obvious examples of exemptions, and why are they not leading to this kind-of slippery slope of “everyone has their own law that applies to them”?

MG: I’m going to go first because you’re probably broader in your exemptions than I am (Laughs). So, we filed a brief on behalf of a Muslim man who was incarcerated. He wanted to wear a beard in accordance with his religious faith. It was a short beard and the prison system said “No, he can’t”, for two reasons. We have a compelling interest because, one, he could have his photo taken without the beard and then have his photo taken with his – it’s like a quarter-inch beard or something – and we’ll never know who he is. And the court was like, “Yeah, that’s not really that compelling.” (35:00) And another one was, he could hide weapons in there. Which . . . probably not many weapons are being hidden in this quarter-inch beard. But we argued that, yes, he has a sincere religious belief. The government’s compelling interest is really not believable. He is not hurting anybody. So that is something where we came down on his side. We came down on the side of a student in a school where there was a no hat rule, and they want to wear a yarmulke. That is not hurting anybody, and clearly should be provided. Some cases where you want a day off to celebrate your religious Sabbath etc., etc. Those are some of the ones that are very clear for us.

JH: Yes, another big case which was around the time of the case of the prisoner, was about an applicant at Abercrombie and Fitch stores And she wanted to wear her hijab as a part of her religious practice. And Abercrombie didn’t want to hire her on that basis. And so that was a case that unified the religious liberty community. Every religious or religious liberty group that filed a brief in that case, filed on her side and said “No. An applicant should be able to wear the religious garb that does not interfere with any safety concerns that might have been present in that employment role.” And so there’s a number of cases that unify us. Of course the ones that get the most attention are the ones that divide us.

BM: So, with the time that we have left, going back to Espinoza, where do we stand? I have two questions: one is to wrap up on Espinoza, and think about where this conversation leads us with the tax credits and what the different things that we’ve talked about – whether it’s funding or dignitary harm, or leading to an excessive entanglement between a religious institution and secular institution. So, trying to bring together some of the different tests or legal ideas that we’ve talked about, and how it applies to this case. And then my second question, which is somewhat related, is, as lawyers, as people in the litigation arena thinking about our audience, what are ways that Religious Studies scholars can communicate their research and findings to the legal field so that they can better inform how we think about religious liberty cases – what constitutes a religion, what is religion, what is religious freedom – and how we think about the separation of church and state? You can tackle one, or both, or neither of those!

MG: I’m going to start with your second question about how religious scholars could be helpful in cases like this. I feel like I sound so sceptical, today. But I’m sort-of looking at free exercise cases and Establishment Clause cases. Oftentimes I think that if you are of a minority faith, and it is something that is not well known to the justices, or not well known to the public, you will lose your case, right? Because you know if it’s about communion wine, people understand about what that means. Or if it’s about kosher food people sort-of understand, in this culture, what that means and the justices would understand that. But if it’s a Native American religion, or if it is something about observing as a Muslim, sometimes those things sound different. And when they sound different they don’t . . . it doesn’t click, sometimes, that that could be a substantial burden on your religion. And so I think some religious education about some of the meaning that these practices have to other religions could be helpful, pretty much to everybody.

JH: Yes. I would certainly agree with that point. And I love reading our Baptist historians. And we have used them in our briefs on a number of occasions. So any ability to continue the scholarly work and research – but figure out ways that are more contextual that we could cite, or that we could use in telling a story – would certainly be helpful. Back to the wrapping up of Espinoza: I do think, as religious organisations are asking for more and more to be treated like everyone else, that we need to be careful what we ask for. We are given a lot of exemptions and treated differently in a lot of ways that benefit us. And those exemptions and special treatments become harder to defend if we’re funded just like everyone else (40:00). And so I would certainly want to remind religious Listeners whether they be scholars or just people who attend church, that whenever the institutions of religion and government have mixed, history has shown us that religion has always, always lost. So if we want to maintain our uniqueness and our special legal characteristics, then we’re going to have to fight to maintain our separateness. Which is why separation of church and state has always been a move led by religious groups, here in the US, from our colonial days till now. It’s not a secular versus a religious fight, it’s a religious versus religious fight.

BM: Great. Well, I think that’s a great place to leave things. I want to thank you both so much for coming on. It’s been a really fascinating and generative discussion. I hope our scholars and other audience members who are listening – whether you are in academia, outside academia, in a religious community, not in a religious community – that this has helped open up some of our thinking about what it means to protect religious freedom, to think about the separation of church and state – and the complicated questions that it brings up, when we say that we support or don’t support religious freedom. So thank you both so much for being here today, and I look forward to having discussions with you in the future.

JH: Excellent.

MG: Thanks for having us.

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How Religious Freedom Makes Religion

Religious freedom has emerged in recent years as a pivotal topic for the study of religion. It is also the subject of heated debates within many countries and among human rights advocates globally, where competing groups advance radically different ideas about how religious freedom operates and what it protects. While for marginalized and minority communities, this freedom can provide important avenues of appeal, at the same time, governing regimes of religious freedom have most often served the interests of those in power and opened up new channels of coercion by the state.

This conversation with Tisa Wenger, author of Religious Freedom: The Contested History of an American Ideal, starts with the question of how religious freedom talk functions to shape the category of religion and to transform what counts as religious in the modern world. Using Wenger’s ethnographic and historical research on the Pueblo Indians, we discuss how local, national, and international regimes of religious freedom have shaped (or even produced) new religious formations, ways of being religious, norms of good vs. bad religion, or distinctions between the religious and the secular. In short, how has religious freedom (re)produced religion and its others in the modern world?

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How Religious Freedom Makes Religion

Podcast with Tisa Wenger (30 September 2019).

Interviewed by David G. Robertson

Transcribed by Helen Bradstock.

Audio transcript available at:

https://www.religiousstudiesproject.com/podcast/how-religious-freedom-makes-religion/

David Robertson (DR): I’m joined today by Tisa Wenger. We’re here in Hanover at the DVRV conference. However, we’re not going to be talking about the German context. We’re going to be discussing how religious freedom makes religion. Tisa teaches in the Divinity School at Yale, including Religious Studies and American Studies, and is the author of the recent book, Religious Freedom: The Contested History of an American Ideal. Welcome to the Religious Studies Project, first and foremost!

Tisa Wenger (TW): Thank you so much! It’s good to be with you.

DR: Let’s put the book in a little bit of context, before we get into a couple of case studies. Tell us how you started working on it. How did your early studies lead you to this subject?

TW: Yes. Well I’ll try to keep it relatively brief, instead of giving a full intellectual autobiography! But my first book, which was based on my dissertation, was called We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom. I started that book, not by thinking about religious freedom, but by thinking about race, American colonialism and category of religion. And I wanted to make an intervention into the kind-of Religious Studies conversation about to what extent is the category of religion a colonial imposition in various contexts. And I wanted to talk about that in relation to Native Americans, and for a variety of reasons ended up looking at the American south west and the Pueblo Indians in Mexico. And I argued, in that book, that Pueblo Indians only began really to contextualise their traditions as religion in the 1920s in order to make the argument for religious freedom. So that’s how I got to religious freedom – kind-of-like through the back door, so to speak. And when I finished that book I wanted to put a similar set of questions on a much broader historical stage. So I was asking, “Who’s invoking the idea of religious freedom and what kinds of cultural and political work does it do?” and, in particular, in kind-of imperial contexts, colonial contexts, and in relation to racial formation in the United States. So the set of arguments that you didn’t hear me talk about today had to do with race, and the way race is shaped in America is kind-of co-constituted with religion. And so I have argued in various other examples about how race and religion are co-constituted. But I was interested initially in this question of how religious freedom shapes or produces religion; when different sort-of social and cultural formations come to be conceptualised as religion, and how the category of religion is formed in that process. And so part of what I’m arguing in the book is that religious freedom disputes do important political and cultural work in that way, in shaping what is religion.

DR: Yeah. Right. And that, for me, is a very interesting aspect of your work. We’re very familiar with the kind-of human rights approach to this issue of, “How do we represent religions in the law?” and “How do we deal with religious freedom?” and these kinds of ideas. All of which, of course, sort-of assume this thing which needs to be represented. Whereas your argument is more subtle. So, if I’m understanding, it’s essentially that the category of religion is almost created in these legal negotiations about how we represent and recognise religions in the law – especially in a sort-of colonial context. Is that . . . have I got that correct?

TW: Yes that’s exactly right. But I would say that in most cases, it has not been created out of nothing, right?

DR: Of course, yeah.

TW: (Laughs). In most religious freedom controversies that we see . . . of course, the category of religion already was present and being used by people, but it is recreated and reshaped all the time. And in some cases, I think particularly in colonial contexts, you can see where local people – colonised people – start to use it for themselves for the first time, or pretty much for the first time, right? Because particularly the thing about US imperialism . . . . And religious freedom is such an important concept for Americans, generally – but for colonial officials in particular, who saw themselves as bringing freedom to the people they colonise, right?

DR: Right.

TW: And in some cases, bringing religious freedom was particularly important to them. So I’m interested in how, then, religious freedom served as a tool for kind-of colonial administration. But I’m also interested, then, in how colonised people take that principle and use it to kind-of speak back to empires.

DR: Right. Which is one of the most difficult aspects of post-colonial study of religion, I think, for people to get their heads around. It’s that it’s a process. There’s a two-way process. It’s not simply the baddies making the goodies behave in a certain way. But the category is reshaped, reconstituted and sustained in that dialogue where it is imposed in certain legal contexts. But then it’s also used by the people being colonised.

TW: Yes

DR: As an act of legitimatisation, yes?

TW: Yes. Exactly. So in the Native American case . . . and I can point to lots of specific examples, you know? In my work on the Pueblo Indians, and the piece of my book that you heard me present on today about Ojibwe Indians in Minnesota, in both cases you see US government officials with the Bureau of Indian Affairs (BIA) delegitimising indigenous traditions by categorising them as superstitious, heathenish, pagan, right? And indigenous people who really in their own languages and ways of structuring . . . . They had their own ways of structuring their societies, but those ways of structuring their societies didn’t really include anything equivalent to the category of religion as Americans understood it at the time. But they start to conceive of those traditions as religion in order to argue back against the categorisation of themselves as heathen savage, pagan etc., right? So this is why I title my first book We Have a Religion. This was a quote from a Pueblo Indian petition to the superintendent of Indian Affairs, saying “We also have a religion,” You know? “And you can’t ban it, because of the First amendment to the US Constitution.” Right?

DR: Yes. The clearest example that I’m aware of – it’s quite a well-known case, you know – is the way that Indian independence and Hinduism are kind-of coeval. So Hinduism is an administrative category, essentially by the British Empire, which then becomes one of the central motifs in the national identity of India leading directly into the Indian independence movement, and, you know, One Nation Indian political power today.

TW: Yes, that’s exactly right. And the sort-of construction of Hinduism as a “world religion” is happening in conjunction with that colonial history. Both by Indian intellectuals and by British . . .

DR: Absolutely.

TW: . . . for somewhat different ends. But it serves both of their interests to construct Hinduism as a world religion.

DR: Absolutely, yes.

TW: But native indigenous traditions, for Native Americans and elsewhere around the world, never got conceptualised or moved to that level of world religion, which is a different thing, as we know from Tomoko Masuzawa’s work and others.

DR: Absolutely. Let’s dig into one of those examples, then. The Pueblo Indians example is really fascinating. So perhaps you could take the Listeners through some of the details of that?

TW: Sure, so the Pueblo Indians are really a group of culturally related peoples in New Mexico, sort of related to the Hopi in Arizona. Related because . . . well . . . . Now I’m going to ramble! But they’re really four separate language groups that lived close by each other for several centuries and so came to share a lot of cultural characteristics. But they were colonised by Spain early on, as part of the kind-of northern expansion of New Spain up into what is now the south-western United States. And that’s hugely influential in shaping who the Pueblo Indians were by the time that the United States arrived in the region, after the Spanish American War in 1848. And most of the Pueblo communities – although not all of them – became Catholic under Spanish rule, and were pretty bilingual in Spanish and indigenous Tewa and Tiwa languages. And they, in the kind-of Spanish uses of religion, would conceive as Catholicism as their religion. So it’s not that they weren’t familiar with the category of religion. But under Spanish law, let’s just say, and in the kind-of Mexican New Spain, and then independent Mexico, there was no legal advantage because there was no religious freedom guaranteed to conceptualising indigenous practices as religion. So they had come to a kind-of accommodation with the Franciscan priests, who were mostly the clergy in the churches. And the Pueblos came to be named for Catholic saints and had feast days for the patron saint of each Pueblo, where they would practice traditional Pueblo dances as well as have a Catholic mass and a procession through the town. But they had kind-of come to an accommodation with the Catholic priests, the Franciscan priests, where they would . . . They talked about Pueblo kiva ceremonies and Pueblo ways as costumbre: custom, right?

DR: Yes.

TW: And so that really didn’t change under American rule until the 1920s, when there’s a new Commissioner of Indian Affairs, Charles Burke, who puts out this kind-of dance policy in order to enforce older regulations against Indian dances and those that . . . the one from the 1880s that I was actually referring to in my talk today. He, Charles Burke in the 1920s, tries to reinforce those relations.

DR: So, maybe just in a sentence or two, tell us what they are, because the Listener won’t have . . . .

TW: Right, so there was . . . and these are not laws passed by Congress, right? They’re more bureaucratic regulations within the Bureau of Indian Affairs, that’s nested under the Department of the Interior. And the Commissioner of Indian Affairs is in charge of the Bureau of Indian Affairs. And he had immense sort-of executive power to regulate. And so this court of Indian offences was created by the Commissioner of Indian Affairs as a way to . . . . I’m sorry, I’m not being very brief here! But it’s relevant . . .

DR: No, this is good!

TW: as a way to, again . . . it’s a kind-of tutelary regime: a way to instruct Indians – and this is done in a very patronising way, so I’m kind-of echoing the patronising language that was used – to instruct Indians in civilisation and in the law. So they would . . . the agents would appoint a kind-of more – quote unquote – “progressive” Indian, to be the judge of the Court of Indian Affairs. But part of what the Court of . . . . There’re also kind-of regulations or there were a list of quote “Indian offences“. And nowhere in the documents extant from the time or in the regulations that were written up by the commissioner, was this referred to as “religion”. But it later came to be called the Religious Crimes Code. But the Indian offences that were listed in this code were “heathenish rites”, “the arts of the conjurer”, “the medicine man” etc., etc., right? And so native people could be, and were, fined and imprisoned for practising the arts of the conjurer, or participating in certain kinds of dances that were specified to be banned. But that had not . . . For various reasons the US control over Pueblo Indians was not nearly so strong in that period in the late 19th century. And it hadn’t really been enforced against the Pueblo Indians ever. And I don’t need to take the time to go into the reasons for that. But in the 1920s, actually – sparked in part by an exposé of Pueblo ceremonies, in which those ceremonies were depicted as sexually lascivious and immoral by missionaries and missionary-minded government agents – who were really, I think it’s safe to say, completely misinterpreting and misreading those ceremonies . . . .

DR: That’s a common way of representing any barbarous religion anyway, isn’t it?

TW: Correct.

DR: It’s a common language.

TW: Correct. So Charles Burke’s new regulations on dances, that were really just trying to re-inforce some of the earlier regulations form the 1880s, were sparked by a controversy of Pueblo Indian dances. So they were very much at the focus of the controversy that ensued. In the meantime, there were kind-of a group of Boasian anthropologists and sort-of modernist artists and writers who had settled in New Mexico, it was in Santa Fe, and who were starting to really romanticise the Pueblos as “ideal primitives” – quote unquote – right? And so some of those people also leapt to the defence of the Pueblos. And the Pueblo leaders themselves resisted the government suppression by saying, you know, “You can’t do this. Our traditions are religion.” But their re-categorising their traditions as religion was aided by the anthropologists and artists who were also starting to do the same thing, right? In a kind of celebration-of-primitive-religion way. So that’s what happened. Then it was a pretty big public controversy, I mean with articles in lots of national magazines and newspapers and such about the Pueblos. And one of the people who was centrally involved was John Collier who at the time had just become the head of a new reform association called the American Indian Defence Association. And he was becoming one of the biggest gadflies against BIA assimilationist policies. And then later under Franklin Delano Roosevelt’ with the New Deal, Collier was appointed as the commissioner of Indian Affairs – which was a huge overturn. And he reversed some of these policies outlawing Native American dances, and he did so on religious freedom grounds. That reform had its own limitations, of course. And most BIA agents, even after that point in the mid-1930s, continued to work closely with Christian missionaries. And even when they formally recognised the right of Native Americans to religious freedom, nonetheless still conceptualised religion with such a Christian model that they often ruled indigenous practices outside of what counted as religion, right? So what was considered religion was always being negotiated and contested on different Indian reservations between native people and government agents.

DR: And so was there also the kind-of opposite side of that? Does the legislation and the control then shape the way that the Indians are practising? Did they begin to think differently about their practices and maybe even emphasise different bits more, and focus on things differently as a result?

TW: Yes absolutely. So when I finished the book on the Pueblos . . . this was the first piece that I did for my new big sort-of broad-scope religious freedom book. My first transitional step I took was to say, “Well I’ve done all of this in-depth work on the Pueblos in New Mexico. Now I wonder how this happened, or can I tell a similar kinds of stories about other Native Americans elsewhere in the United States?” right? And “When did native people start to use religious freedom arguments?” and “How did that shift things for them?” I didn’t get to that part of . . . . I did make that kind of argument in relation to the Pueblos, as well, and talk about how reconceptualising their traditions as religion created new conflicts within Pueblo communities. But I want to talk now about the newer research that appeared in the second book, in the religious freedom book, that resulted from me asking, “Well, what did this look like more broadly?” And initially I was actually thinking, “Well, probably because there was such a concerted government attempt at suppressing these traditions and nobody was thinking of them as religion, that probably religious freedom wasn’t a pertinent category until the twentieth century.” But I found that not to be the case. I found that actually the more I looked, the more I found Native Americans from the beginning of the nineteenth-century really, in some cases, using religious freedom talk. And I would say, broadly speaking, there are at least two different types of ways that that was applied. So one, in relation to the kind-of stages of colonial history, perhaps – in early stages of colonial contact, before native nations were conquered, when you have Christian missionaries coming, where the native nations are not under US control – you often see native people saying something like “We’re not interested in your religion. We have our own religion.” And sometimes that directly becomes language about religious freedom and sometimes it becomes directly language about religious freedom that is also about protecting indigenous sovereignty, in a kind-of collective way: “Our people have our own ways. And you can’t take our land. You can’t take our …” You know? And religious freedom was part of that. But it’s not a religious freedom that is appealing to the US Constitution, because they’re not under the US Constitution. They don’t see themselves as being governed by the United States.

DR: Yes. And there’s maybe less of a . . . It’s maybe not to do with freedom of religion and the role of the secular. They’re more thinking in terms of religion as customs and that kind of idea.

TW: Yes. They using religion-talk, but in a way where it’s very integrated. But then, after Native Americans are conquered essentially, right – and that happens at different times in different parts of the country and for different native nations – but by the late nineteenth century, by the 1880s, really overwhelmingly native Americans have been conquered, and they have been restricted to reservations, and there are now new policies that are being implemented. And the Code of Indian offences that I was describing earlier is part of that period of a kind-of newly heightened effort at administrative control. And that’s when, immediately in that period, you start to see Native Americans on reservations resisting the suppression of indigenous practices. And sometimes native people refer to their “doings”: ceremonies, dances, all kinds of practices – you know, medicines, healing practices – they start to refer to some of them as religion specifically in order to make religious freedom arguments. And that started to happen in the 1880s. It accelerated with the Peyote movement, and the suppression of the Peyote movement. And I trace that history in the book. But you see . . . . And actually, the Peyote movement is a really interesting case with regard to the question you were asking about how that shifts indigenous traditions. Because, I mean, I don’t think the government suppression and the law is the only reason that Peyotists, and people in that tradition, started to talk about it in the language of religion. There were other reasons as well, but this was certainly one of them. But what is very clear is that the Peyote leaders and practitioners . . . structurally, the movement shifts towards a more, what we might call a kind-of Protestant – certainly a Christian – model for what counts as religion, in order to make religious freedom arguments in the courts, and in Congressional hearings, and before state legislators. And that happened in various places. But, you know, there’s the incorporation of the Native American church, right, that happened . . . which there was an anthropologist, James Mooney, who helped with that process. And the Native American church, you know . . . . Again Peyote ceremonies were, for various reasons, borrowing from Christianity. And some of the Peyote movements began to see themselves as Christian. But the fact that being Christian helped with a religious freedom argument meant that those groups had a boost, right? (Laughs). So there’s a kind-of incomplete Christianisation of the Peyote movement and the Native American Church that isn’t entirely caused by the need to resist government suppression and make religious freedom arguments, but is certainly encouraged and accelerated by it. And so, you know, Peyote is called “the sacrament”. Again and again, you see Indians trying to argue, you know, against legislation and suppression. And that is also in the climate of a prohibitionist period, when there’s a huge campaign against drugs and alcohol – and particularly alcohol, right? So there were crusaders who were employed by the Bureau of Indian Affairs to stamp out the alcohol trade among Indians. And the Peyote became kind-of classified as a dangerous drug, alongside alcohol

DR: Right, yes.

TW: So the Bureau of Indian Affairs talked about Peyote and the Peyote as a cloak for drug dealers. They just . . .

DR: Right. Similar to the way that cannabis became . . . ?

TW: Yes. “They’re pretending to be religious in order to kind-of pedal drugs”, right? And so, in order to combat that kind of suppression and denigration, Peyote leaders would emphasise the kind-of positive moral effects of Peyote practice and Peyote worship, and talk about the sacrament, and talk about the church. So that was very much a necessary strategy for them. And I don’t see it . . . again, I don’t see it only as a strategy, but it was certainly accelerated by that. Yes.

DR: Yes, and on the RSP we’ve talked a few times – we’ve been talking about it over the last week here, as well – that all of these categories – you know, religion, race, the secular, human rights – they’re all part of an interlocking system. So it’s not just the one thing that affects the way that religion is constructed. But it’s part of a larger system in which those are the building blocks we’re working with.

TW: Right. Yes. So you reminded me, in saying that, of the point I was making in the talk I gave earlier today: about how religious/secular distinctions are even produced in some Native American societies in this process. Because what I found was – this was the part I didn’t quite get to in my earlier answer – but what I found was that in many native communities while religious freedom arguments appeared quite early, and many native leaders were making religious freedom arguments, sometimes kind-of strategically, tactically, that wasn’t the most effective way to convince a particular official to allow them to hold dances. Of course, sometimes dances went on, regardless of what the officials said, out of their view. But many Native Americans on many reservations, you’d see dances being held on the Fourth of July, on various kinds of national holidays and Christian holidays – you know, Christmas and Thanksgiving, but especially the Fourth of July – and native people and returned veterans especially after the First World War saying, “We fought for our freedom and we have the right to celebrate our freedom.” And, plus, “These are just social dances, and white communities hold dances too, to celebrate the 4th of July – so why can’t we?” And they, in those cases, would very much downplay any kind of sacred ceremonial. They didn’t conceptualise those traditions as religious for the purposes of these arguments. And so you see, I think, a kind-of differentiation between certain dance or ceremonial traditions that became defended and conceptualised as religion, and came to take on the characteristics associated with religion – which is really modelled after Christianity in the United States – versus those kind-of dance or ceremonial complexes that were defended in different ways and so were not conceptualised as religion. And so there’s a kind of religious/secular distinction that happens where some dances are secularised. But the point I want to make is even beyond that, that the very distinction between a religious dance and a secular dance is emerging in that process.

DR: Right. As a last question, then: what do you think . . . where are we, then, with the religious/ secular distinction in law today? Do you think this is something that we should be seeking to challenge? Or do you think that there is still some value in a religious freedom law?

TW: That’s a really big and hard question for me! (Laughs).

DR: I know it’s something you’re thinking through just now, so maybe it can be just initial . . . .

TW: It is. And I mean I am more comfortable trying to observe and map how it’s happening. Seeing the kind of work that religious freedom is doing. And I think in the contemporary United States certainly religious freedom disputes help shape what people think of as religious and what they don’t think of, you know. And why certain things, again and again, get sort-of coded as a religious issue, as a religious freedom issue, is complex and puzzling. But, you know, it should . . . I’m in two minds about the continued utility of religious freedom. And I have always come down on the side that . . . as kind-of muddled and complicated as its history is, that it’s a tool that has nonetheless been useful to lots of minority groups. And that we can’t just reinvent our world and our categories ex nihilo, right? We don’t have that kind of power as scholars. So is it better to try to eliminate religious freedom law? I mean, I don’t really think so. I might change my mind about this. You know. I think that while seeing how historically constantly negotiated it is – what gets included within the scope of religious freedom and how that shapes what religion even is in our society – that we’re better off pushing for more inclusive, but sometimes also more limited views of religious freedom. In the sense that I don’t think religious freedom should kind-of trump every other value or principle of equality and justice that we have. In the history I trace, I think you can see how that tendency has been a problem and hence served . . . has been weaponised over and over again. And I think it’s still weaponised today. So I think we’re better off trying to kind-of reformulate and reclaim religious freedom. And I have a colleague and friend, Michael McNally who teaches at Carleton College and he has a new book coming out, on Native American religious freedom, which is really grounded in contemporary ethnographic research with . . . . Well, he’s worked with and learned from Native American activists and lawyers, and organisations advocating for religious freedom now. And he says that they’re very . . . these contemporary native leaders are very much aware of sort-of limits and pitfalls of religious freedom. But they nevertheless find it to be a useful tool alongside others. Even though it has failed repeatedly in the courts for Native Americans, contemporary activists would not want it to be gone.

DR: Right, yeah.

TW: Because they see it as way that they can . . . because religious freedom does have such cultural power in the United States that it can be a way to give a certain amount of moral authority to their claims. I mean that’s one of the kinds of arguments that he makes, and I find that very convincing. And so I think that for scholars who see religion as a constructed category and all of that – yes, absolutely. But who are we to say that activists shouldn’t have that tool, right?

DR: Absolutely. It’s been a really interesting conversation. There are a number of big questions that we’re not going to get time for today – so maybe we could have you back one day in the future to go more into the racial stuff,, for instance, which we didn’t really get too much in. But for now, Tisa Wenger, I want to say thank you for taking part in the Religious Studies Project.

TW: Absolutely. Thanks for having me! And I hope to be back, because, yes – there’s so much more to talk about!

DR: Excellent! Thank you.

TW: Thanks very much.

 

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When Islam Is Not a Religion

Asma Uddin is the author of When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom. In this book, Uddin examines an alarming trend to redefine Islam as a political ideology, not a religion. In our conversation, we track the history of this movement to redefine Islam and its implications for the rights of Muslims. We discuss the widespread presumption among American progressives that courts tend to protect religious freedom for Christians, but not for Muslims, and we examine particular stories that support and problematize that narrative. In particular, Uddin provides vivid examples of how American courts have reacted to arguments that Islam is not a religion. Uddin explains how and why Muslims and their allies disagree about whether religious freedom laws offer (or should offer) necessary or sufficient legal frameworks for protecting the rights of religious minorities in the United States.

In the latter part of the conversation, we discuss Uddin’s approach to writing the book. She describes how she balanced the desires to better equip people who already acknowledge that Islam is a religion and, on the other hand, to convince those who view Islam only as a political ideology to change their minds.

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A transcription of this interview is also available, and has been pasted below.


When Islam Is Not a Religion

Podcast with Asma Uddin (24 June 2019).

Interviewed by Benjamin Marcus.

Transcribed by Helen Bradstock.

Audio and transcript available at: Uddin_-_When_Islam_Is_Not_a_Religion_1.1

 

Benjamin Marcus (BM): Hello, Religious Studies Project Listeners! My name is Ben Marcus and I’m really pleased to be here today with Asma Uddin – Welcome, Asma! Asma Uddin is a fellow with the Initiative on Security and Religious Freedom at the UCLA Burkle Centre for International Relations. She’s also a Berkley Centre Research fellow and a senior scholar at the Religious Freedom Centre of the Freedom Forum Institute. Uddin previously served as council with Becket, a non-profit law firm specialising in US and international religious freedom cases, and was director of strategy for the Centre for Islam and Religious Freedom, a non-profit engaged in religious liberty in Muslim-majority and Muslim-minority contexts. She is widely published by law reviews, university presses and national and international newspapers. She is also an expert adviser on religious liberty to the Organisation for the Security and Cooperation in Europe and a term-member of the Council on Foreign Relations. In addition to her expertise on religious liberty, Uddin writes and speaks on gender in Islam and she is founding editor-in-chief of altmuslimah.com. She graduated from the University of Chicago Law School, where she was a staff editor at the University of Chicago Law Review. And we’re here with Asma today because she just wrote an excellent new book that I’ve had the chance to get a sneak preview of, which is titled When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom, out on July 6th, and available for pre-order now. So I’m excited to have Asma here today to talk about that book. And I want to start off with a broad question that really is the context for the book that you’re writing, which is: was there a specific moment, or experience, that alerted you to the fact that people are seriously arguing that Islam is not religion?

Asma Uddin (AU): There was. And thank you, Ben, for having me here. It was in 2010, I was still at the Becket fund, and I was working on a case in Murfreesboro Tennessee, involving the Islamic Centre, Murfreesboro, and its attempt to build a new facility. As is very common with Muslim communities across the US, the community in Murfreesboro had outgrown its base numerous times and was tired of moving from apartment, to garage, to storefront, and decided that it needed a permanent spot: something that was big, and could accommodate them and their growing congregation over the course of many years. And, given the existing relationships that the Muslims of Murfreesboro had with others in that community, they were totally caught by surprise when, in the course of their construction of this building, their construction site and much of the construction material was actually set on fire. And those flames – as they were eating up this site and these materials – those were really the opening scene of my book. Because it was in that moment where there were these very clear signs that there was going to be real tension. And chronologically speaking, the timing is important because this incident happened pretty much on the heels of the Park51 dispute that has sort-of erupted, and taken over both New York City and the national headlines dealing with the mosque project – or a project that was deemed to be a mosque. It was actually a cultural community centre in New York. And so the two incidences are linked, in terms of the substance and the timing. But the argument in Murfreesboro was clear that it had come out of the animosity against the Park51 building. In the Murfreesboro case, it was actually argued in court, over the course of the six-day hearing . . . which is a significant fact, because the judge didn’t stop the questioning as it went on! Typically, if a lawyer gets out of line the judge shuts it down, but in this case it was allowed to go forward. And in the course of that six-day hearing it was argued very explicitly . . . and there’s always been a long time when these arguments have implicitly been made that Islam is not a religion, but these words were actually stated in court. And the argument was, essentially, that all the different protections that houses of worship get under the law do not apply in that case because Islam is not a religion.

BM: And what are they arguing that Islam is? What are they saying? If it’s not a religion, what can it be?

AU: There tends to be a number of responses to that. But the most dominant response is that it is a political ideology. And, you know, furthermore a dangerous political ideology that is bent on taking over the United States; that is at odds with the US Constitution; and its ultimate goal is a subversion of that Constitution.

BM: And I assume . . . . Did the judge provide any good questions . . . that would try to undermine that argument? Or did the judge just let that go forward unchallenged?

AU: (5:00) I mean, it was a number of witnesses that were questioned with really outrageous questions, such as: “If a religion is founded by a Prophet that engaged in sexual relationships with underage girls, specifically a six year old, would you call that a religion?” I mean, these are like commissioners and various government officials, siting on the stand, being asked these kinds of questions.

BM: Wow! So what do you find most alarming about this move to redefine Islam as something other than a religion? What have been some of the tangible repercussions or consequences of this?

AU: Yes, I think the conversation on Islamophobia has been going pretty strong for a long time. A lot of scholars and activists have noticed this trend. And what I noticed when I set out to write this book was that the conversation was almost exclusively based on what the media and politicians are saying – which is very important, obviously, because of the impact that both of those players have on our society. But nobody was really looking at the effect of this rhetoric on constitutional rights. And to the extent that that sort-of bridge was being made to tangible results, it was almost always in the light of national security policy and questions of immigration and detention. But it was a little odd for me, actually, that Muslims as a religious community . . . that conversation wasn’t happening through a religious liberty lens – which I get into in the book, actually. To the extent that framing, in itself, is another way of essentially saying that “Islam is not a religion”. If you keep talking about it in some other terms and not as a religious liberty issue, you’re almost implying that religion isn’t the proper lens to be looking at this through. And so when I set out to write this book, I was really coming from my background as somebody who’s a lawyer and writer focussed on religious liberty in the US, and abroad. And I was wanting to change that conversation a little, and turn the focus a bit to the concrete effects on religious freedom – which is what I spend the entire book really looking at: the various ways that this “Islam is not a religion” argument comes up. Sometimes it’s very explicit. Sometimes it’s implicit but in all cases it’s very obvious. And I have several chapters, each dedicated to a different area of religious exercise, where this has come into play to diminish legal rights of American Muslims under the US Constitution.

BM: That’s so interesting. I wonder if you’ve seen any changes in the strategies of lawyers, or legal scholars, who are advocates for the Muslim community? Are they starting to add in legal language protecting the rights of Muslims that are not just based on the First Amendment but based on other laws or legal precedent in their court cases? Are they trying the Fourteenth Amendment, or other laws or statutes?

AU: Yeah, I mean I haven’t done a full survey of actual briefs filed. It’s more so: are briefs being filed at all? But I did see some legal literature – academic literature – where Muslims were arguing that Islam, and protections for Muslims, needs to be defended under the racial discrimination elements of the equal protection clause.

BM: Interesting.

AU: And in some cases the argument went so far as to say that it should be used instead of religious liberty arguments because it “more accurately captures what is going on”. And that was, again . . . I mean, this was something that I read very early on in my research, which again was very alarming for me because it wasn’t just that there was a failure to understand these issues, but it was an actual concerted effort to diminish the importance of that. So again, it’s a move within the community. It’s not just outsiders saying this. But now it’s like a move within the community being, like, “Yeah, I think a better way to think about what we’re going through is racial discrimination and let’s advocate for it that way.” And I think that that in itself opens . . . I think the racialisation of Muslims is a reality. I think that is a phenomenon. But when you begin to say that it is racial instead of . . . or that the racial element is more important than . . . you’re creating exactly the space that these other people want, to diminish the religious status of Islam. You’re giving them that opening. And that’s worrying.

BM: It’s fascinating that the discourse by those who are antagonistic towards, or attacking the rights of Muslims has actually changed, to a certain extent, the legal strategy of Muslims – or their allies in courts – to move from the religious liberty lens to the race-based discrimination lens. Or maybe a combination of those two things.

AU: Again, I haven’t . . . that was the advocacy that I saw in the academic literature (10:00). And in terms of the actual legal advocacy I think, for me, that’s less of a current problem in its explicit form. But I think this idea of Muslims as racial or ethnic minorities – or something akin to that – as opposed to a religious minority, is showing up just in the types of issues that are being litigated to begin with.

BM: Right.

AU: And so, coming from a background where I saw very sort-of expansive advocacy for religious liberty on behalf of conservative Christians, and Jews, and a wide array of other religious groups in the US, that expansiveness is very much missing in the Muslim legal advocacy space. It’s like even the NYPD surveillance case, it was just. . . . The argument there, in terms of proving animus, was almost entirely based on trying prove intentional discrimination. And I was like . . . I tried advising that group that you can actually prove discrimination without proving the exact very explicit intentional discrimination. There’s a wide array of ways to prove that there was systemic differential treatment in a very systemic way. It could be something that’s not at its face discriminatory but applied in a particular way . . .

BM: Right.

AU: And that resistance or, I guess, the narrow sort-of lens on what constitutes religious discrimination is not something that’s limited to Muslims, but I think it’s just part of the political alliance that they’ve been welcomed into, that wants to think of religious liberty in very limited terms. Whereas many people on the conservative side would argue for religious liberty much more broadly. And so I think all those are political elements mixed in as well.

BM: Yeah. That’s fascinating. And are you seeing it show up in the court? So could you tell us a little bit more about how your work ties into the argument that courts are biased against Muslims – that somehow religious freedom is for Christians only? This is something that’s come up with a few of the Supreme Court cases that were decided just in the last year – that religious freedom laws are only really being applied to protect Christians and not Muslims or other religious minorities. Could you speak a little bit more about that?

AU: Yeah. And so I think that more extreme version of that statement . . . this idea that you stated perfectly encapsulated that . . . . The Editorial board of the New York Times put out a piece about a month ago with the title “Is Religious Freedom for Christians Only?” And I think that that’s an extreme version of what I’m looking at. I don’t think that the bias is that extreme. And I definitely don’t think that’s the case with the US Supreme Court. Do I think that there is some problematic bias and some dynamics that need to be looked at, and questioned more closely? Yes. There is statistical evidence that a number of different researchers have put together, looking at religious liberty cases brought under a wide array of legal bases – whether it be the Free Exercise Clause, the Religious Freedom Restoration Act, and so on – and looking at these cases over the course of . . . one study, for instance, looked at it over the course of a decade and found that Muslims were the least likely to have their religious liberty claims resolved in their favour. I think the only one that was competitive with that was the black separatist sects. And so there’s a number of studies looking at and bringing this issue to the fore. And these researchers then also take the step of trying to figure out “Why?” Like, “What’s going on?” Because when it comes to legal cases and their resolution there can be a number of different things going on. It could be, for instance, that many Muslim claims are from Muslim prisoners, and prisoners generally are notorious for bringing frivolous claims – so is that what’s going on? Well, no. Because if it was frivolous it would have been dealt with much before the judge got to writing opinion and deciding a case. And so, for instance, a study that I discuss in some detail in the book is one by Gregory Sisk and Michael Heise and they go through a number of explanations of what they think, and explain why none of them are the right explanation. And they finally conclude that it’s bias. It’s a bias that a lot of judges probably don’t realise that they have. But they, as human beings living in a society saturated with this, are essentially being affected by what’s going on outside the courtroom in terms of how they’re dealing with some claim in front of them. And so there’s that empirical evidence. And then in terms of the type of thing that the New York Times was seizing on . . . I think it’s significant that it is the New York Times and its editorial board. Because it’s really reflecting, I think, what many Americans are feeling in the light of more recent decisions. I think that contrast that we saw this last summer between the Supreme Court’s (15:00) . . . the way it dealt with animus – religious animus or anti-religious animus – in the Masterpiece case. And there was a lot made of what the commissioners and the Colorado Human Rights Commission had said about Jack Phillips’ Christian beliefs, or religious beliefs specifically. And that was enough to, essentially, hold in favour of the baker. And then, three weeks later, you have the Travel Ban case where it’s just way more evidence of animus and it’s like the President of the United States who’s engaging in this. And it was just sort-of deemed an issue, by the majority, that wasn’t relevant. And there are all kinds of other complicated factors here. It’s not just a state commissioner it’s the President. The President comes with all kinds of special privileges. But many Americans. . . . And it’s also the fact that the dissent in that case disagreed and said that, “Well, I don’t think that that’s the way law should be interpreted in that particular case.” And so there’s that plausible legal argument for why animus should have played a bigger role. But then that contrast really, I think, left a lot of Americans seriously wondering about the impartiality of our justice system. And then it came again to the fore in February, about a month ago, when we dealt with the case involving a Muslim inmate, a death row inmate who wanted an Imam with him in the execution chamber and was told that he couldn’t have him there with him, because the only clergyman allowed in there was the one of the staff. And the only one on staff was a Christian clergyman. And so, again, it was just especially because the facts of that case are so heart-breaking –it’s like your final moments! And the fact that it wasn’t just, like, no clergyman was available. I think Alabama has actually moved to that position now, which I think is bad for other reasons. But it was like, “Well if you happen to be Christian, you’ll get him.” Right?

BM: Right.

AU: And so I think we’re consistently seeing this. And of course there’s the bigger looming question of how partisan Supreme Court is. And we saw that blow up with the Kavanaugh hearings.

BM: Right. So you’ve outlined so many challenges to trying to help the public understand the nuances of this issue. Obviously there is compelling empirical evidence that you mentioned from different scholars who’ve been researching the success of religious liberty claims by different religious groups. You’ve talked about public understanding of how the Supreme Court and other courts have interpreted the First Amendment. And The New York Times editorial board piece. So with this very loud media landscape, where people are talking about this issue in very polarising ways, what have you found has been successful when you’re talking about Muslims and religious liberty, when you’re trying to reach different audiences – and especially audiences that might be hostile, or questioning the research and evidence that you present in your book? Has it been that empirical evidence is really helpful? Have you found personal narrative . . . ? I know in your book you weave in some of your personal narrative with your family growing up in Florida, if I remember correctly. So what has been successful? Do you change your tactics or strategies when you’re speaking to different audiences?

AU: So in terms of whether or not this is successful, I think that’s a question that remains to be seen once the book comes out and I use it as a sort-of launching pad for conversation and real engagement – which is what I’m hoping to do with it. But I think you raise an important question. I think that’s what I was also trying to get at when I said this framing of The New York Times’ editorial board . . . and I also understand that it’s probably getting a compelling title. But I made it a point to say that I thought it was more extreme than it needed to be. And part of that is just sort-of forks into how I wrote this book to begin with. I just made . . . I made a concerted . . . . It was actually a struggle to write about anti-Muslim issues in the US and not to fall into the type of tone and rhetoric that tends to dominate the space. I’m not actually sure that I’ve seen a book that really gets into the question of Islamophobia, and does it in a way that tries to make peace and reconcile with the people who are engaging this rhetoric. And that ultimately is, I think, why a lot of this literature just isn’t having an impact. I don’t think it’s enough just to kind-of like use it to hammer other Americans. I think the point is . . . OK I aim to articulate what’s actually happening. I’m not going to sugar coat it (20:00). But I’m also not going to use it to make assumptions about . . . certain types of assumptions that I think are probably a little bit too common now. Which is this idea that the person making these arguments is either inherently “dumb” or “bigoted” is something that we hear a lot. And I try to stay away from those words. Because I think it turns people off. It turns off the precise people that you need to reach. It makes them uninterested and it makes them put you in a particular box. And so I try, to the extent possible, to use language that shows that to some extent I understand their concerns. And I see them as another human being who is motivated by things that a lot of human beings are concerned about. A huge one that I keep hearing about is this idea of security and the way that Muslims have been portrayed in the circles . . . and with the leaders that they listen to, as a threat to the security of them, to their families and to their country. And part of my effort here, in humanising this, is like, “Guess what? I feel that, too.” Because I am also human, right? And so it’s hard to explain that a) I’m not going to put you down for your concerns, but I’m also going to explain to you how I have those same concerns and yet, even with those same concerns I don’t think that that justifies, or requires that, we limit the rights of Muslims, or of anyone else. So to the extent that we can measure success, I think some of the people, that interact with that group, which have read the manuscript, feel that I’ve done that well. So it remains to be seen.

BM: Yes. And to follow up on the question of audience: when you were writing it, did you imagine that you were equipping . . . were you trying to “robe the choir”, you know, “feed the choir”… are you “preaching to the choir” intentionally so that they have the tools that they need to continue to “sing out loud” – to use the metaphor for too long – to say that that “Islam is a religion: here are resources that I found from this book that help me make that argument?” Or are you trying to convert other people? Are you trying to reach an audience that already disagrees with you, or perhaps doesn’t quite know, and you’re trying to bring them over to your understanding of things?

AU: Well, the funny thing with the book is that I sort-of take aim – in my very civil, calm way, you know – across the political spectrum. So, roughly the last half of the book really looks at the way that I think that liberal allies of the Muslim community are, in their own ways, turning it into something that is not a religion. And why I think that this is really problematic. So the question really is: will I have any friends after the book? (Laughs).

BM: (Laughs)

AU: But the way you phrased the question was interesting. Because you said, “Are you preaching to the choir or trying to give them the tools to make the argument that Islam is a religion?” And it’s interesting because I’ve written about the book topic in mainstream news outlets, The New York Times and more recently The Washington Post, and a lot of people do get caught up in that. Like this question of “Well is Islam a religion, or is it not a religion?” “How do we define a religion?” “Is the dominant frame here the Protestant conception of what a religion is, and is that the core of all this?” And I actually don’t get into that. I sort-of mention that as an introduction as like “Yeah, that’s going on – but that’s not relevant.” This book is not a philosophical, deep dive into what constitutes a religion. I think that’s not what’s important. I think a lot of other people have done that. I think it would be interesting to look at that again in the light of modern political debate. But it’s more so: OK, I’m talking about the law, and the law has its own way of figuring out what’s a religion for purposes of protection under the US Constitution. And that really is the only definition that matters when it comes to legal grades. So there’s various philosophical definitions that have been adopted by the courts. But, again, the relevance is only to the extent that it’s been adopted by a court.

BM: That’s so interesting. Do you think that there’s a disconnect between conversations in Religious Studies as a field about what religion is, and in the legal field about what religion is? Are the courts listening to Religious Studies scholars when they’re trying to make sense of what constitutes a religion and what doesn’t? Or is it its own tradition, and they’re just referring back to their own tradition and not really in conversation with Religious Studies scholars?

AU: Well I mean, currently, it’s Paul Tillich‘s definition of religion that has really . . . The US Supreme Court has never defined religion. But federal courts have. And so there isn’t, like, this one agreed upon definition in the legal world (25:00). But for purposes of actual legal protections they understand . . . there is an understanding by the courts that whatever the definition may be, it has to be pretty broad. And that judges are not in the best position to be defining philosophical parameters of what constitutes religion. So to the extent that they can turn to philosophers and religion scholars to have the terminology and help figure out some sort of way to articulate this, they do that. But they’re more sort-of concerned about “How do we capture what we’re trying to protect without necessarily creating too strict a boundary?” Because ultimately this is about constitutional protections. And we have to . . . . So the emphasis really tends to be on what judges can and cannot do. We can’t interfere with questions of religious doctrine. Whether something is important to a religion, or central to a religion, it doesn’t matter. It could be the most peripheral element. If you’re religion-based it still gets protected. And so that’s really interesting, also, if you start tying it back to the discourse around “Islam is not a religion”. Because a lot of that discourse tends to be “Well, Islam is not just a religion”. Or, more specifically, as some pretty high-profile people have said, “Only sixteen percent of Islam is a religion.”

BM: How do they quantify that?

AU: Well my sense is that it all comes from a study or extensive ongoing studies done by the Centre for the Study of Political Islam, CSPI, and they actually, apparently, have gone through all the various Muslim core texts and have sort-of categorised what they think counts as religion, versus politics. And based on this categorisation have come up with the sixteen percent number.

BM: Wow! (Laughs).

AU: And of course it’s like, you know, the fact that outsiders are sitting there parsing through this way, coming up with their own definitions of where religion ceases to be religion and politics starts. It really kind-of shows: a) how ridiculous the process is – purely from an intellectual perspective – but then also what it leads to.

BM: Right.

AU: And that’s exactly the sort of thing that judges have to stay very far away from.

BM: Right. Wow. Well as we wrap up, do you have any thoughts about the future? Do you think that we’re moving in a positive, or negative, or neutral direction? Are you seeing groups that are popping up that are more vocal in their defence – I don’t know if defence is the right word – but their explanation that Islam of course is a religion? Or are you seeing more and more groups that are popping up, making this argument that Islam is not a religion? Where do you think that we’re heading? And I know that’s a very broad question, so you can answer in the courts, or just in the public discourse. Do you think that there’s reason for hope, or reason for some concern? Or both?

AU: I would say both. In terms of the people who might be popping up to say that Islam is not a religion, I think that they are not yet popping up (in court) – at least not in that form – because I think that . . . .What the book seeks to do is articulate a problem. And once I articulated it, lots of people were like, “Yeah. I heard that!” But you know they just sort-of dismissed it. And it’s really about “Don’t dismiss it. Focus on it.” And even more recently, with the Australian Senator commenting on New Zealand mosque attacks, he put out an official statement that said, “Islam is not a religion and these people are not blameless, even if they are essentially being gunned down in their own house of worship. They are not blameless.” And again it was just like people were like: “Oh my God! This is crazy!” But it was like: ‘It’s crazy!” And then attention sort-of diverted from it. And my intention was to bring it back. “You’ve seen this before. It’s happening again.” An official statement put out by politicians in the most gruesome circumstances and I’m trying to direct the attention to that. Because you can’t really take it seriously, and begin to figure out a solution to it, if you don’t actually realise it’s happening.

BM: Right.

AU: And if you don’t realise it’s part of a larger concerted plan with particular goals in mind . . . So in terms of the two different camps that you’ve mentioned I think the side that’s saying Islam is not a religion is gaining steam. There’s a piece that I cite in the very beginning of my book, but that was written by David French, a very prominent conservative commentator and columnist with The National Review. (30:00) And he says this. “Every time that I go and talk to conservative audiences about religious liberty, the first question is always: ‘Does everything you just said apply to Muslims?’” And so, there’s plenty of evidence that this is gaining ground. It’s becoming a very common argument. And I think it’s time to sort-of focus our energies in articulating proper responses to that.

BM: Well, thank you for doing that so compellingly in your book. It’s a really compelling, cogent, explanation of this line of argument that we’ve seen come through certain conservative circles. And then you also, as you mentioned, talk about the ways that folks across the religious political ideological spectrum are eroding the sense that Islam is a religion. So thank you for that contribution. As a reminder to our Listeners, the book is out on July 6th. The title is, When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom. And you can pre-order it now. Thank you so much, Asma, for coming in. I really enjoyed the conversation.

AU: Thank you, Ben, for having me.


Citation Info: Uddin, Asma and Benjamin Marcus. 2019. “When Islam Is Not a Religion”, The Religious Studies Project (Podcast Transcript). 24 June 2019. Transcribed by Helen Bradstock. Version 1.1, 13 June 2019. Available at: https://www.religiousstudiesproject.com/podcast/when-islam-is-not-a-religion/

If you spot any errors in this transcription, please let us know at editors@religiousstudiesproject.com. If you would be willing to help with transcribing the Religious Studies Project archive, or know of any sources of funding for the broader transcription project, please get in touch. Thanks for reading.

This work is licensed under a Creative Commons Attribution- NonCommercial- NoDerivs 3.0 Unported License. The views expressed in podcasts are the views of the individual contributors, and do not necessarily reflect the views of THE RELIGIOUS STUDIES PROJECT or the British Association for the Study of Religions.

The BASR and the Impact of Religious Studies

A panel on the public impact and engagement of Religious Studies/Study of Religion/s led by committee members of the British Association for the Study of Religions, including Dr Stephen Gregg (Wolverhampton), Dr Christopher Cotter (Edinburgh), Dr Suzanne Owen (Leeds Trinity), Dr David Robertson (The Open University) and Dr Steven Sutcliffe (Edinburgh).

Issues discussed include why RS continues to be a “muted voice” in public discourse; minority religion and the law; podcasting; and new audiences for RS.

This was presented as part of the University of Edinburgh’s Religious Studies seminar series.

You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us. And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, stuffed rabbits, Ramen, and more.

A transcription of this interview is also available as a PDF, and has been pasted below.

The BASR and the Impact of Religious Studies

Podcast with Steve Sutcliffe, Stephen Gregg, Christopher Cotter, Suzanne Owen and David Robertson (12 March 2018).

Transcribed by Helen Bradstock.

Audio and transcript available at: The BASR and The Impact of Religious Studies 1.2

Steve Sutcliffe (SS): Ok. Well, thanks for waiting on a bit. Sorry about the delay in getting started. Because impact and knowledge exchange are so much the discourse of the day for academics – whether you’re still a research student, or whether you’ve got a post – we thought it would be useful to have some kind of a brief event where each of us, from the committee of the British Association for the Study of Religions, say a few words about what they thought some of the challenges and issues of that were for the study of religions, and for Religious Studies in particular. So we tried to put together this panel to tie in with a committee meeting of the British Association of the Study of Religions, which we’ve just come hot-foot from in the McIntyre Room. Because, of course, our committee members live all over the country. Stephen, in particular, has come up from Wolverhampton, and has spent most of the day on the train even getting here. And Suzanne, who’ll be familiar to some of you as a former student here, has come up from Leeds. So we thought, “We’ll be all in the one place, so let’s also do some sort of outward facing event.” So we’ve got four brief, informal presentations from each of the folks here: David Robertson, Christopher Cotter, Stephen Gregg and Suzanne Owen. And I thought I’d introduce it first, with just a few words on the perspective of the British Association for the Study of Religions, in so far as it represents Religious Studies scholars and Study of Religion scholars in the UK. And some of this will be familiar to some of you, but it may be less familiar to others. And we’re not giving you a kind of official line. This isn’t a BASR statement, it’s just individual committee members’ views on – what they call in the old clichéd media – the burning issues of our time. So the British Association, just to give you a little bit of history – this is me, by the way! I’m Steven Sutcliffe. And when I’m not teaching here, I’ve also been president of the British Association for the Study of Religion, for the last two and a half years. So the BASR began in 1954. And it was part of an organisation called the International Association for the History of Religions, which was set up in 1950. And then later on BASR, in 1999, helped to launch the European Association for the Study of Religion, which is very much still in business. And we actually hosted the European Association’s first annual conference in Cambridge, that year.* We began, in the mists of time, as a dozen or so members in what seems to have been a fairly clubby style, based around Oxford, Cambridge and London. But we’ve now grown to about 180 fee-paying members. And we’ve been helped very much getting the membership list nice and lean, with all paying members, with our membership treasurer Chris Cotter, here. We publish an electronic Bulletin twice a year, and we publish a journal once a year. We hold archives of the Bulletin and other papers in the Bodleian Library in Oxford, and one of our members, Chris Cotter again, is currently completing a small project on the oral and documentary history of the British Association, which we hope to build on in the future, for some more grant funding, to get a larger history for the study of religions in the UK. Past presidents – in which august tradition I’m very proud to stand – have included Ninian Smart, Geoffrey Parrinder, Ursula King, Kim Knott and Marion Bowman. So, I give you this institutional background just to be sure that you realise that we’ve got about 60 years-plus of a learned society, promoting the study of religions in the UK. We define ourselves in this way, which is consonant with the International Association of the History of Religions, and the European Association for the Study of Religions: “The object of BASR is to promote the academic study of religions – understood as the historical, social, theoretical, critical and comparative study of religions – through the interdisciplinary collaboration of all scholars whose research is defined in this way. BASR is not a forum for confessional, apologetic or similar concerns.” Most members of our association have Social Science or Humanities backgrounds and are interested in working across religions in a comparative and theoretically informed way. Looking to analyse wider patterns in behaviours and belief including, importantly, the history and uses of the category “religion”. Our scholarship is not normatively committed to particular traditions or worldviews. And so, while some of our members include the study of theology in their portfolios, we don’t practice – we don’t do Theology per se. (5:00) Coming to this question of impact and engagement, we think in the life-time of the association and, of course, before the association – because the study of religions, in at least the European contexts, goes back to at least the mid-late 19th century – we think we’ve developed an excellent store of knowledge about religions and religion. And we transmit this store of knowledge to our students and we disseminate it in our publications. But, of course, the call for demonstrating impact and engagement out-with classroom and conference has brought us a new set of challenges, like most academic fields. So, well and good. We’re just like other learned societies and disciplinary fields in the modern academy. We’ve got to come to grips, now, with this added level of work in already packed portfolios – this added work about engaging the knowledge we produce, and having a social and public impact with the knowledge we produce. However, the category religion is bound up with an especially complex set of issues and positions that permeates education, politics, church-state relations, media and law to name just a few fields. Now, I’m not arguing that there’s something special about religion, but I am arguing that it’s particularly heavily-freighted and loaded with assumptions and contestations that bring an unusual set of issues for us to deal with in our field. So, that’s happening. At the same time, specific named religious traditions have developed their own associations since 1954- or perhaps they pre-existed 1954, anyway – their own journals and conferences, in an era of increasing specialisation. So that raises the question of what the general theoretical comparative study of religions might be for, in terms of exchanging our knowledge and impacting with our knowledge. That’s really the thing that faces us as an organisation whose raison d’être is to work theoretically with the historical concept of religion, and comparatively across more than one tradition, for example. So that’s a kind-of very brief, potted history of where BASR comes from, what it sees itself as having being doing effectively, and where we are now. The arrival of knowledge exchange, of impact – impact was 20% in the 2014 REF and will be 25% in the 2021 REF – is now a particular challenge for us. So this formal panel is specifically about what impact is Religious Studies making, and what knowledge is it exchanging? So having said that, I want to now open the way to our first contribution on that theme. And it’s Dr Stephen Gregg from the University of Wolverhampton.

Stephen Gregg: Thank you, everybody. And it’s always nice to be in Edinburgh. My first ever BASR conference as a not-so-young post-graduate student was in Edinburgh, I think in 2007. So it’s very nice to be back here. And thank you to Steve and Naomi for organising this. I’ve just got a little ten minute slot and I’m going to try not to be too formal in this. Because what I want to talk to you about is based on some research and thinking that I’ve developed in recent conference papers and also a McGuire – and I’ve made some modest contributions to this debate myself. And this examination of lived or living religion preferences people not texts, practices rather than beliefs. And this cutting edge of the study of religion, I want to argue, is absent when we look at media discourse, political discourse and, crucially, the interdisciplinary discourse when it approaches the study of religion in different contexts. And I want to give you just a couple of examples of this, because I’m very aware that we’re short on time here. One example is political discourse. You may have noticed in the cabinet reshuffle last week, that one of the new faces is Rehman Chishti, who is a Conservative MP of British Asian heritage. And under the old Government of David Cameron he consistently lobbied parliament to use the term Daesh instead of ISIS, when it was talking about the terrorist group in Syria and Iraq. And he did this on the grounds that he didn’t want the word Islam, or anything Islamic, linked with a terrorist organisation. And I totally understand the political expediency for that, to help with community relations. But the problem I have with this – and this isn’t a deep analysis of ISIS, this really isn’t the time or the place for that – but the problem I have with that is the assumption behind it, which is: anyone that commits a violent act, in the name of religion, isn’t a real Muslim; or, if we’re thinking of suicide bombings in Sri Lanka in the Civil War – they’re not real Buddhists; or sexual abuse by clergy isn’t something that a real Christian would do. And this understanding of religion as a benign act, this essentialism and reductionism of what religion is, takes away the everyday experience of people that I hope you disagree with in the name of religion, but they are doing so in the name of religion. And so what we get is a confessional, theological approach to what religion is, essentialising in a benign hermeneutic circle, which I think mutes the voice of people that are understanding the everyday experiences of these religious practitioners – whether we agree with their actions or not. This saturates public discourse within the media, within politics. It’s always faith leaders that are interviewed. It’s never an expert on a particular religion. It’s always an Imam or someone from the British Council of Muslims or someone from the Hindu Council of Britain and so on. And again we’re preferencing this notion of confessionalism. We can see the new initiative of the Religion Media Centre. We can think of religious literacy projects that have run out several universities in recent years. We can think of the Archbishop of Canterbury saying how important it was- just in the last few months he’s said this- that we improve religious literacy. Well I don’t think anyone in this room would disagree with that. But whose understanding of religion are we going to improve the literacy of? The confessional theological understanding of the Archbishop of Canterbury or the academic study of religion in diverse contexts? This filters down through education systems as well. (15:00) You can think of our recent or current – I should say – education policies where the study of religion is not a part of the National Curriculum, but is still a legal requirement to teach in schools. And I have to say, I ‘m not an expert on the Scottish education system but, certainly in England, religion is something to do, not something to study. It is something that is practised and it is confessional from its starting point. And it concerns me that Religious Studies has become a muted voice within this discourse. Just briefly, I wanted to talk about interdisciplinary contexts. If we’re changing what we mean by religion, by looking at everyday practices, by people instead of texts, practices instead of beliefs, if we’re understanding mundane everyday actions as religious actions, then when we talk to an art historian or an archaeologist, or a museum curator or someone in textual analysis and we’re using the same terms but meaning radically different things – how is that working in an interdisciplinary way? I wonder that we’re often having divergent, not convergent conversations. But I don’t want to be completely negative about this. I want to suggest that there are solutions. Talking to Steve about this informally, he’s used a phrase – a couple of times – which has pricked my ears up. Steve Sutcliffe has said, “We need a Ninian Smart moment.” Which is: we need a new revolution as to what the study of religion is, perhaps beyond the Religious Studies of the late 20th century. And I think we need to start by looking at public discourse and focussing specifically on diversity. And I think it’s very simple and we make small simple steps. Because, when you’re trying to explain to a journalist that, actually, this is complicated – that’s not what a journalist wants. They want sound-bites. They want public discourse about our academic disciplines to be simple and to be black and white. Well binaries don’t work anymore, we know that. Look at religious identity, belonging, insider/outsider: it doesn’t work with binaries. So, I want us to make those first small steps by focussing on diversity and particularly hyper-diversity. And if we take those small steps, perhaps – the Religious Studies cutting edge – this new move away from textbook essentialisms of “Christians believe this”, or “Hindus do that”, can filter down into public discourse about lived religious experiences, beyond the textbook boundaries of identities and practices. Thank you.

SS: Thanks very much Stephen, and we’ll move swiftly on, so we’ll have the four presentations and we’ll have plenty of time for discussion about the themes arising. So we’re very pleased to welcome back Dr Suzanne Owen, who studied here for her PhD, and her undergraduate degree, and is now Reader in Religious Studies at the University of Leeds Trinity. I think Suzanne is going to address the question that I mentioned of the category of religion, and how this was an important part of the expertise of our field. And she’s going to be looking at a case study where expertise in how categories are used actually does have some quite important impact.

Suzanne Owen: Yes. Well, hello. So I’m going to talk about the charity registration of a particular case, showing up an area where scholars of religion have had some impact and where they could have even more. And this case, in particular, shows these points. So the charity registration is one means by which a group can claim status as a religion in the UK. As groups must also prove that their religious activities are for public benefit, as a charity, this then domesticates religion by forming groups to conform to, perhaps, liberal Protestant Christian values that religion is a force for good and benign. It is interesting to examine how groups negotiate this criteria for religion, as defined by public bodies, in order to highlight both the problems with defining religion, and how the state marginalises groups that do not fit their criteria by denying them access to certain benefits. Not only is conforming to state definitions of religion a challenge for groups but – according to Matthew Harding and his book on Charity Law and the Liberal State in charity law we find the state marking out certain purposes as charitable according to contested conceptions of what is the good, and then extending legal privileges to those citizens who pursue those purposes. (20:00) So taking a critical religion approach, similar to the work of Timothy Fitzgerald and others, to examine critically the social processes whereby certain groups are counted as religions, as James Beckford also noted, we can really see how the category of religion operated in public discourse and then actually creates a kind of public conception of religion that gives it status and legitimacy. So, in my case, the focus is on how the category of religion operates in charity registration cases, looks at how religion is framed in charity law and is then interpreted by the Commissioners. And these Commissioners are not religion specialists, as you can imagine. They come from Law and Economics, and other areas like that. And so they are using a kind of folk understanding of religion in their conception, that’s been handed down through case law. So the case of the Druid Network was for registering as a charity in England and Wales. Scotland, of course, has got a separate commission for registering charities, and so the Druid Network case was only for England and Wales. But there are groups in Scotland, of course, that have had their own negotiations with the state. So charity registration as a religion – as I said, this kind of folk understanding of religion has been passed down through the generations. It defines religion in a certain way, which is based on their understandings and experience of religion in this country, mainly liberal Protestant Christian. So the criteria is: belief in a Supreme Being or Entity, worship of the Supreme Being or Entity, theological cohesion and ethical framework. So every religion, or group that wants to be registered as a religion, needs to prove this criteria or show evidence of it. And some groups have failed to do this, like Scientology, and the Gnostic Centre, and the Pagan Federation as well. But the Druid Network’s success has made it a significant case in law, because it actually altered the definition of religion in charity law, slightly. And much of their success seems to be due to the influence of scholarship on religions – particularly a statement that was sent in with the application by Graham Harvey at the Open University, in Religious Studies. And this was cited repeatedly in the decision document that you can get on line, where you can get the charity commission decision documents. And they are repeatedly citing his statement as an authority for giving them a reason, a justification, to grant charity registration to the Druid Network as a religion. So the problems for the initial application by the Druid Network was they had problem trying to fulfil the criterion of belief in a Supreme Being or Entity. And the Druid Network wanted to present the concept of Nature as this Supreme Entity. And they failed in their first application but, as I said, in their second application with Graham Harvey’s statement, they gained success and were able to convince the Charity Commissioners that Nature could be conceived of as a Supreme Being or Entity. And thus they’ve – well, in my view, they haven’t actually changed the definition of religion, but they’ve expanded it. And this is definitely an issue, because after their registration it was thought that other pagan groups would have an easier time. And this is not the case, because the pagan federation’s application came after – o r one of their applications – and they still failed. And they failed on theological cohesion. And they contacted me because they knew that I was working on the Druid Network case. And, basically, I think for them they would either have to present themselves as a single religion (which they don’t at the moment – they are an umbrella of different pagan groups) or to challenge the definition of religion in charity law. And, as far as I know, they are not going to do that anymore. And they’ve now decided to apply in a different category, like for education or some other purpose. But still, they need to register as a charity. Groups have to register as something if they’re non-profit, and so forth. So, not for religion for them, it seems. And so I think the next step then is . . . Eileen Barker’s also written lots of witness statements or supporting statements for groups, and she wrote one for the Pagan Federation at one time.(25:00) When they failed she wrote something along the lines, reported by Michael York, that “If they don’t accept the Goddess as a Supreme Being then they’re sexist” or something along those lines that Michael York had reported. So we are already being employed to write statements for groups applying for charity registration as a religion. And I think the more that we are involved in such cases, the more we can influence on trying to erode the popular conceptions of what religion might be. But then, beyond that, there’s also the issue of: why have a separate category of religion at all, for charities? The charity’s work is for public benefit. Why does there need to be distinction between a religious charity and a non-religious charity? And this special sort-of status of religion, I think, does not make a huge sense in religion and just ties them in knots, constantly, when they’re trying to define whether a group is religious or not. But there may be . . . this is an area where we can look more broadly at how the category of religion is operating, and also how it is actually a hindrance and a problem within the state as well. So we’re looking at the discourse and conception of religion, so what that means, of course – the implications of that. Is there something called religion that we can see and define? And my view, of course, of that is that it is a part of discourse; it is a kind of construction. But the state does not see religion that way. It sees it as sui generis: as something that is unique, and something that emerges out of self in distinction to politics, economics and culture and other areas. But by doing that, you marginalise and limit the activity of religions, so that: they are not meant to be political; they are not meant to be making a profit. The problem with Scientology is that, perhaps, they’re seen as a business. And that is the issue. They might not state that, but it might be an underlying bias. And the same thing . . . the way that Government gets angry every time the Archbishop says something political, because religions aren’t meant to be political. So you can see how this sort-of permeates throughout the discourse. And when you study the discourses on religion, you can see these patterns. And also the conception of seeing religion as being inherently good, as well. That plays into that. So, lots of areas where we can actually look at these discourses and how they are defined in law. Thank you.

SS: Ok. So we move onto another kind of case study where this is impact going on, and in Suzanne’s talk, there, it was interesting to see that a key witness to the Charity Commission is a scholar of religions, a senior scholar of religions, in the Religious Studies tradition in the UK. So there’s something going on there – even if it’s room for changing the definition or pushing further at that – that there’s impact from the scholar. This time I’ve got Dr Chris Cotter here, who’s going to talk about another empirical example of impact – this time within the wider scholarly arena of student knowledge, spread around the world, which is one of the criteria of the 2014 REF and will be again in 2021, probably with an expanded remit. In other words, the ability of scholars to effect classroom understanding and pedagogical disseminations of good ideas and cutting-edge theories of research on religion – with a particular focus on postgraduate students. But Chris will tell you about the Religious Studies Project that he co-founded with David, here.

Chris Cotter (CC): Indeed! And as our business cards say: “The Religious Studies Project: Podcasts, Opportunities, Debate!” And this – we’re actually recording for the Religious Studies Project now. We’ll not be recording your discussions so feel free to speak freely. So, the RSP began in May 2011 when David and I met in the bar of Teviot Row House, and decided to record a couple of audio interviews that were passing through this very Edinburgh RS Seminar series. And, formally launching in January 2012, it’s become a truly international collaborative enterprise. We’re currently headline sponsored by the BASR, also the North American Association for the Study of Religions and the International Association for the History of Religions. (30:00) In September 2017, we became a Scottish Charitable Incorporated Organisation – so, one of those educational charities that Suzanne was mentioning. By this point we had amassed over 250 podcasts of around 30 minutes each, with leading scholars on cutting-edge theoretical and empirical issues in the study of religion, in combination with regular response essays that reflect on, expand upon, or critique the podcast output. And, by 2017, listeners had downloaded our podcasts over 400,000 times – with new podcasts averaging over 100 downloads in their first week, growing to over 7000 for some of the more established ones. The website receives over 150,000 hits per year and we’re currently followed by over 4700 accounts on Facebook, and 4200 on Twitter. But, why do podcasts at all? So, back in 2012, we could see a number of advantages to the podcast format. We thought about our own consumption of the medium. They provided us with company when engaged in lonely solitary tasks, a feeling of community, personally curated 24/7 radio station on topics of interest, and an accessible Edu-point to a wide variety of topics. But, where was the podcast for our chosen discipline the academic study of religion? So we decided to start recording the podcasts that we wanted to hear. And this format, we think, democratises knowledge and humanises knowledge production, by giving listeners a chance to hear academics talking naturally, and offering an introduction to the topic somewhere between a Wikipedia entry and a full-length journal article or book. A lot of material can be covered in half an hour, yet this can be digested at the listener’s own pace, time and time again, ad infinitum. And, regardless of our position in the field, we all have to focus our reading, and a podcast can help fill those gaps that we don’t have time to read, and help us to keep up with the latest research and current perspectives of older scholars and themes. But also – in an era of departmental streamlining and closure, and with increasing isolation and stress brought on by the marketisation of education, and by limited budgets for conference participation, etc. – regularly listening to a podcast, we hope, can provide a vital connection to the world, outside the confines of one’s own institution, that can be academically stimulating and provide a sense of community and common purpose. And similarly – given the increasing pressure to relate research to public interest and to make sure that our research is accessible for the public and has impact – recording a podcast is a simple and efficient way to disseminate research freely and accessibly to thousands of potentially interested listeners, and in perpetuity. So, when setting up the RSP, we quickly adopted an attitude of “Don’t wait to be given permission.” And this attitude has pervaded our output to this day. The point wasn’t merely to replicate existing academic structures and outputs but to compliment, challenge or expand upon them. And indeed, it’s unclear whether we would have been able to build anything like the resource that we have, had we been bound by a department or an institution, because of the issues in justifying the cost in time and resources for each episode, slow moving checks and balances, and the inbuilt conservatism of institutions. But after we’d built up a reputation, however, it’s been encouraging to see these existing academic structures engaging with RSP outputs in the form of citations, entries into course syllabi and the occasional more creative or innovative engagement. But all of that being said, it’s not been plain sailing, and we’ve been on the receiving end of a number of important criticisms over the years – the most frequent of which has surrounded the quality of our audio, which we’ve been consistently improving over the year, and which I’m not going to dwell on here. But, you know – try producing your own free podcast! But related to this, it was pointed out along the way that our podcasts might be problematic, for example, for listeners for whom English was not their first language, or – how were people with hearing impairments going to be accessing all of this scholarship? So although we do still try to maintain a level of irreverent humour that’s characterised the podcast from the beginning, I think we decided that bit more professionalism on our part would reduce the opportunity for things to be lost in translation. And we’ve also, recently, begun to transcribe our podcasts – which means that now they can be more easily cited and utilised in the classroom, and it’s also softened some of the barriers surrounding spoken English. (35:00) But, of course, that adds a lot in terms of time and cost. You know a half an hour podcast can take two, three for hours to transcribe. On a different note, given our – by “our” I’m referring to David and I – our situatedness as two white, relatively privileged, relatively heterosexual British men, who’ve been closely associated with the RS system at the University of Edinburgh for over a decade, and who have very specific, very niche research interests, it’s hardly surprising that – despite our best intentions – RSP output has not been as wide-ranging, representative or diverse as it arguably should be. A simple lack of resources is partly to blame – including time and money to fund travel etc. – as is the need for a timely and topical content. You know, if we’re faced with a choice between a less than ideally representative collection of scholars or not recording anything at all, we’ve generally opted for the former. A more cynical response to all of this might be to ask: “Well, who made us the police of religious studies?” We started this free podcast, why should we bother? We’ve been producing this resource for over five years, in our “spare time” with very limited resources, so of course there’s going to be omissions. Of course things will slip through the net. And of course we will unintentionally repeat and reinforce some of the inequalities that plague the field globally, and in our UK context. And whilst there is undoubtedly some truth in this cynical response, we are keenly aware, however, that we do have great deal of responsibility. We had this responsibility when we started, even though we may not have realised it. But this is particularly the case now, given our growing position of authority in the field and our recently acquired charitable status, and the fact that we’re sponsored by some of the highest bodies in Religious Studies. It’s not just our reputation that’s on the line, any more. So although we might be irreverent, we hope that we do take things seriously. And we’re trying to become more proactive than reactive. Controversies thus far have been relatively few and far between, and we’d like to think that when something has gone awry, and problems have been pointed out, we’ve been gracious, understanding and attempted to move forward in a manner that will preserve the existing ethos of the RSP whilst incorporating the critique, learning from it, and putting measures in place to ensure that things are different in future. And we can, maybe, talk more about that later. There will, of course, always be more to be done. And I’m onto my final page, now! The name Religious Studies Project – we deliberately chose this to be ambitious. As we’ve heard already, the discipline is at a crossroads: departments are being squeezed because of cuts and the neoliberalisation of the academy. The subject is – as we’ve also heard – being balkanised into departments, being made up of multiple Area Studies scholars who don’t seem to have the time or interest in cross-cultural comparison, or of theoretical issues, necessarily. Religion is a more prominent aspect of public and political discourse than it has been for decades, yet it seems that our analysis is not being sought or heard. Our larger Project then, with a capital P, is to get Religious Studies the voice that it deserves. No-one knows what RS does. We can help to change that. We believe that these topics are intrinsically interesting and we know that a person talking naturally about a subject they’re passionate about is always engaging. However, too few of us know how to actually go about this. And these are not skills that we’re typically trained in, as academics. And, moreover, the current academic climate – we’ll see how this develops – rewards us for work aimed only at our peers and all-but inaccessible to the public, in journals, conferences, committees etc. The RSP, here, has built the platform for scholars to put forward their research for free, and in a way that anyone can understand, which after all should be a central concern for the publicly funded intellectual. Thinking beyond podcasting and RS, what can others take from this? Because there’s an important difference of approach between the RSP and traditional academic platforms. Had we sought perfect audio, an ideal website, and perfectly diverse participants from day one the project would arguably never have happened – and certainly not keeping to a weekly schedule. Like Facebook’s original motto, which was: “Move fast and break things”, we use an iterative model where we try a lot of things, and improve on what’s working as we go along. And, in this way, our publishing model is closer, we think, to journalism or software development than traditional academia. But this may be an approach that academia needs to embrace in future. That one perfect journal article, behind a paywall, that belongs to another age. And it’s only really serving your own ego, or publishing houses. (40:00) If you want the public to listen, they have to be able to hear you. Hmm!

(Laughter)

SS: OK. Thanks very much, Chris. And onto David Robertson now, Dr David Robertson of the Open University is going to ask a very clearly-defined question: Who are we speaking to?

David Robertson (DR): I hope I give a clearly-defined answer.

SG: The people in this room!

(Laughter)

SS: Yes, well today that’s true isn’t it? But we’re recording it for the Religious Studies Project, so it will be a podcast going out to the world.

DR: Good

Audience Voice: As long as they speak English!

CC: Alright! I’ll see you afterwards . . .

(Laughter)

DR: Edit that out please! Yes. OK. To slip into business speak for a little minute: if this has been a SWOT analysis of the field, then the previous panels have been mostly on the strengths and weaknesses, but I want to focus instead on threats and opportunities. So as not to – because I’m last – to end on too pessimistic a note, I’m going to start with the threats.

(Laughter)

DR: But I want to say, before I start, that we honestly and seriously face the issues before us. Because I don’t think you can answer a question before you correctly understand the question. In short, I think that the current muted voice of RS is not the issue per se but is rather a symptom of larger currents of which, I think, RS is particularly vulnerable. The first is de-traditionalisation and anti-elitism. Now I’m sure I don’t need to point out to anybody here that traditional institutions are increasingly challenged. The scholar can no longer expect their word to simply be accepted as authoritative. I think this will ultimately be for the best, but it will certainly require those who are interested in speaking to the public, to realise that our voice is but one voice in a marketplace. This means we need to make the effort to speak directly to that marketplace. We need to speak and write plainly and simply and, importantly, without appeals to intrinsic authority. And we need to sometimes put aside concerns that are of primary interest to specialists. But the bigger issue is not only whether the public can hear us, it’s whether they even want to. For the public to regain trust in academia, like other institutions, we need to demonstrate its value to them. Why is it in the interests of the public to have a non-confessional social scientific study of religion? And who is making that case? Secondly, is marketisation and neoliberalisation of the university: scholarship is expected to show public impact, yet academics also need to produce REF-able work for a closed academic market, as Chris was saying. This leaves us between two stools, and our working hours further squeezed. This is further the case because high fees are driving more and more attention onto the quality of our teaching. Again, another thing – but another factor that’s taking our time away. The economic values of qualifications is increasingly stressed. It’s not an easy case to make, for RS, to a lay audience. And emphasis on citizenship and morality now means that secondary RE now has very little to do with tertiary RS. And the third point I want to raise, is that the growth of identity politics means that public intellectuals are increasingly required to speak from a particular insider perspective – which is something that Stephen mentioned. For public discourse in religion, this favours apologetic scholarship over critical scholarship. For policy makers in such a climate, scholarship is only useful insofar as it eases tensions between identity groups. So to sum up, at present, successful public intellectuals in the field of RS are generally those whose work addresses and usually supports identity politics, citizenship and economic factors. Indeed, why would public institutions want to hear from, or support a project which seeks to destabilise ideas seen as essential to social order and to individual self-identity? We need to address this issue convincingly and seriously, beyond a REF panel or the British Academy. However, to turn to opportunities, now: the question posed by Stephen, “Why are we being ignored?” leads to the question, “Well, who are we speaking to?” And this is important ant because different groups have different needs and different expectations. So we’ve heard from Suzanne, talking about the law; we’ve heard from Chris, talking about the university; but there are other audiences, such as education at secondary level in schools. RE is a requirement in schools in the UK, but has long been under-funded and under-supported. (45:00) Certainly, a legacy of public sector cuts and an outdated assumption that secularisation meant that it would ultimately become unnecessary anyway. The conversation has come back recently, starting with Linda Woodhead and Charles Clarke’s: A New Settlement for Religion in Schools, 2015, which built on the Westminster Debates, but has a rather normative Christian position which troubles many RS scholars – myself included – and an emphasis on themes of citizenship, tradition and morals. It did, however, kick-start a rather long-overdue discussion. And this year’s We Need to Talk about Religious Education: Manifestos for the Future of RE, edited by Mike Castelli and Mark Chater, is a much bolder contribution which offers a number of manifestos for the future of RE. It argues that leaders of the RE community are struggling to make clear and safe positioning between the wreckage of old assumptions and the messy incomplete birth of the new. These changes are in part the responsibility of RS but we’ve been slow to take up the challenge. There’s definitely been some progress, however, and a number of colleagues have been much more involved in teaching and learning issues, particularly Dominic Corrywright of Oxford Brookes, who was until recently a committee member of the BASR and Wendy Dossett of Chester. The BASR’s new Teaching Award was designed to reward and highlight such work. But we still need increased clarity on the function of RE at secondary level and how that relates to the function of RS at Tertiary level. And indeed, should those subjects be necessarily related? A fourth audience is media which Steven talked briefly about, but I would like to add a slightly more positive note. The old media is on its last legs. Newspapers and TV channels, as we know them today, won’t exist in ten years’ time. Long-form media, however, like documentary series and podcasts, are growing year on year. We’re in a unique position to be able to seize the means of production here, but it requires clear ideas, strategies and, above all, action. The traditional media still thinks in terms of sensation and conflict. But at the same time there is a move to long-form documentary work which is allowing for greater subtlety and nuance. Ben Zeller‘s recent involvement with the ten-podcast series on Heaven’s Gate, which just concluded, is a great example. By compromising slightly, he was able to influence the series producers enough that it was by far the fairest and most sympathetic portrait ever in the media, not only of that group, but of an apocalyptic new religion, full stop. I’m at present involved in the early stages of two similar projects, although on a much smaller scale. And in both cases simply setting out some of the historical background to the producers, to show that these ideas do not simply just spring from nowhere, has been enough to influence the direction that the project’s going in. If we consider how much time we spend on journal papers and the return on our investment, this is obviously worth doing. And there’s no real reason why such projects can’t be part of a REF submission – it’s something that other disciplines do all the time. The final one I want to bring up, briefly, is policy-makers including security. Now INFORM has had a great influence here, as Suzanne mentioned already. But recently Kim Knot and Matt Francis of Lancaster have done some great work with the CREST project on security and terrorism. Suzanne Newcombe from INFORM and myself took part in a workshop in London for Whitehall and MI6, recently, that they organised. And, actually, the RS focus papers were among the most responded to of the entire event. Similarly the massive European Union Project on Conspiracy Theories COST also involves a number of RS colleagues who have again had considerable impact, there. Similarly, the Open University has had great interest in a proposal to start a course designed for Home Office Staff on dealing with different religions. The short version of this is that, in fact – although these people are even busier than we are – if we can make our services available, there is a ready demand: they’re keen to hear what we’ve got to say, especially if we can make it practical. So we need to think about more realistic ways in which we can make that possible. So just to sum up, then, I want to ask a couple more questions. One is: do we really want to be public intellectuals? Are we prepared to put in the extra effort and learn to play the rules of that field? And if not, are we prepared to concede that role? And what becomes of Religious Studies in that case? Thank you.

SS: (50:00) OK. Thanks very much, David. So that’s the end of our contributions. And then the floor now will be open to some questions and observations, engaging with one or other of the informal presentations that we’ve heard. Just to remind you, I tried to put it into context by emphasising the history of the British association of the Study of Religions and that widely generic field of Religious Studies. We had Stephen talking about the danger of Religious Studies becoming a muted voice, where it had little effect in public arenas; Suzanne was then giving us an example, as was Chris in a different way, of actual empirical impact: REF-able impact. REF-able is this terrible kind-of adjective which we’re all using now, which means “able to be submitted to the REF panel.” Two very different case studies there. And David’s finished off by asking a series of interesting questions about audiences as well as the threats that proceed those. So the floor is now open for any contributions, clarifications from our speakers, or observations.

* Correction from Steve Sutcliffe: The “EASR was founded in Krakow in 2000 and first conference was jointly hosted with BASR in Cambridge in 2001.”

If you spot any errors in this transcription, please let us know at editors@religiousstudiesproject.com. If you would be willing to help with transcribing our podcast archive, or know of any sources of funding for the transcription project, please get in touch. Thanks for reading.

This work is licensed under a Creative Commons Attribution- NonCommercial- NoDerivs 3.0 Unported License. The views expressed in podcasts are the views of the individual contributors, and do not necessarily reflect the views of THE RELIGIOUS STUDIES PROJECT or the British Association for the Study of Religions.

Christian evangelical organisations in global anti-trafficking networks

Produced by R. Michael Feener

American evangelical Christian organizations comprise a significant contingent of the global anti-trafficking movement, and mobilize considerable financial resources around a moral objection to prostitution and sex trafficking. In this interview, we talk with Elena Shih about her ethnography of missionary vocational training rehabilitation projects that train sex workers in Beijing and Bangkok to make jewelry that is sold in the United States, and what this can show us about transnational dynamics of religious activism and non-governmental organizations enacted through the corollary motives of salvific evangelism and social entrepreneurship.

Since the turn of the twenty-first century, there has been a remarkable surge of interest among both academics and policy makers in the effects that religion has on international aid and development. Within this broad field, the work of ‘religious NGOs’ or ‘Faith-Based Organisations’ (FBOs) has garnered considerable attention. This series of podcasts for The Religious Studies Project seeks to explore how the discourses, practices, and institutional forms of both religious actors and purportedly secular NGOs intersect, and how these engagements result in changes in our understanding of both ‘religion’ and ‘development’. These interviews with leading scholars working on the topic across diverse contexts in Asia (and beyond) have been conducted by Dr. Catherine Scheer & Dr. Giuseppe Bolotta of the National University of Singapore’s Asia Research Institute. Our work on this has been generously supported by a grant from the Henry Luce Foundation.

You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us. And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, candy, pocket knives, and more.

A transcription of this interview is also available, and has been pasted below.

Christian Evangelical Organisations in Global Anti-trafficking Networks

Podcast with Elena Shih (27 November 2017).

Interviewed by Giuseppe Bolotta and Catherine Scheer.

Transcribed by Helen Bradstock.

Transcript available at: Shih- Christian Evangelical Organisations in Global Anti-Trafficking Networks 1.1

 

Giuseppe Bolotta (GB): Welcome to the Religious Studies Project. We are Giuseppe Bolotta

Catherine Scheer (CS): And Catherine Scheer

GB: And this is the fourth installment in our series on religion and NGOs. Since the turn of the twenty-first century there has been a remarkable surge of interest among both policy makers and academics into the effect of religion as an international aid in development. Within this broad field the work of religious NGOs, or faith-based organisations, has garnered considerable attention. This series of podcasts for the Religious Studies Project seeks to explore how the discourses, practices and institutional forms of both religious actors and purportedly secular NGOs intersect, and how their engagements result in changes in our understanding of both religion and development.

CS: Since the turn of the twenty-first century, North American Christian NGOs have become increasingly visible actors in the humanitarian sector. One particularly prominent area of attention and interventions for such organisations has been in the global movements against human trafficking. In this interview we talk with Elena Shih about her multi-sited research on US Evangelical NGO’s involvement in the global anti-trafficking movement, and specifically on their projects in Thailand and China. She will explain how her findings contribute to our understanding of the role of US-based Christian actors in this specific field of rights, advocacy and development. Before introducing our guest for today’s interview we would like to thank the Henry Luce Foundation for supporting our research on this topic and the production of this series. So speaking with us today is Dr Elena Shih, Assistant Professor of American Studies and Ethnic Studies at Brown University, also Faculty Fellow at the Centre for the Study of Slavery and Justice. Dr Shih is a Sociologist specialising in gender and sexuality, transnational race and ethnicity, social movements and labour in the Global South. Giuseppe would you like to go ahead with the first question?

GB: For sure. Thank you very much Elena for being here with us. So in your book, Manufacturing Freedom, you shed light on the role played by Protestant NGOs in the Global anti-trafficking movement, looking at long-term fieldwork in the US where the NGO’s are headquartered as well as in China and Thailand where they have projects. So, what led you to specifically focus on these Christian organisations, and how do you position yourself as a researcher in relation to both these organisations and those that you work with in the aid projects?

Elena Shih (ES): Thanks so much for inviting me to be a part of this podcast and for the wonderful introduction and really provocative first question. I actually didn’t begin this project hoping to understand the role of Christian organisations, and I think that understanding the genesis of the methods that led to this project, maybe, sheds light on some of its ultimate findings. So I began this project in 2007, having just begun graduate school in Sociology at UCLA, and having also just returned from three years of living in China; first working with a women’s legal aid organisation in Beijing and subsequently working with ethnic minority youth on the China-Burma border. And at that time I was very concerned with how the growing American interest and investment in trafficking, globally, didn’t really resonate on the ground in China. And so, when I returned back to the United States for graduate school I wanted to understand some of the gaps between the global and the local in manifesting things like the 2000 United Nations Palermo Protocol and 2000 United States Trafficking Victims Protection Act. So I began by attending a series of anti-trafficking conferences and anti-trafficking fairs that were increasingly prevalent in Southern California around 2007. And we saw an enormous response by American civil society, responding to what the United States had called over and over again a “growing scourge” of human trafficking (5:00). And, week after week, I would go to these different fairs and I started to see a pattern of numerous organisations that were working in different parts of the world, but had centred on social enterprise as their way of intervening. And by social enterprise, what I mean is that they were trying to turn to the markets and sell goods – often what they termed “slave-free” goods – as a way of raising funding around human trafficking, but also bringing money and jobs back into the very communities that they claimed people were trafficked from. I happened to get to know two organisations very well – one that was working in Thailand and one that working is China. Both happened to have offices and activist home-bases in Los Angeles. And I began volunteering with them, doing everything from helping them sell jewellery – which was the good that they were selling – to liaising with customers, to processing inventories, and to just generating different kinds of awareness around their cause. And it wasn’t until maybe eight months of volunteering with these organisations – when I travelled to Asia to see their production sites in Beijing and Bangkok – that I began to understand how important Christian faith was for these organisations. What that looked like on the ground is that for sex workers who are recruited to become jewellery makers in this project, across both organisations, Christian worship – an hour of Christian worship or Bible Study – was a mandatory and populated part of their wage, as were different kinds of spiritual and moral rehabilitation. So, I had workers comment to me that they often-times felt like maybe their promotions or salary bonuses were dependent not so much on their labour output making jewellery, or how they were doing on the shop floor, but more in terms of their spiritual growth and how much they had grown to accept Christianity in their lives. So I think, looking back now, in over a decade that I’ve been working on that project, it still is fairly striking to me that, a lot of times, when this jewellery is sold, a consumer or slavery activist doesn’t necessarily know that it’s attached to highly missionary goals. And, for many people, even the fact that it is a Christian organisation or it is a missionary organisation would not be problematic because it is ultimately serving a development goal in the end. Which is that of bringing jobs and economic alternatives to sex workers in Asia.

GB: Right.

CS: Wow. That is a very long-term engagement and it is fascinating to hear how you have really encountered, or kind-of bumped into the religious aspect of these organisations, and how your own experience reflects what the customer sees or doesn’t see in a very interesting way. Now, a question more specifically about these American Evangelical organisations. They comprise a significant contingent of the global anti-trafficking movement and mobilise considerable financial resources around the moral objection to prostitution, as you point out in your research. Can you tell us a bit more about the ways in which these organisations situate themselves within this global movement of anti-trafficking, for instance, in relation to non-faith-based organisations? And also how do they influence the movement’s lines? And how are they influenced by this more general global anti-trafficking movement?

ES: Yes, I think that there’s a really fascinating and particularly American history of the Christian Right, in particular, in the formation of anti-trafficking protocols in the United States and there are definitely scholars who are far better positioned to talk about that than I (10:00). So I would definitely direct listeners to work by two scholars in particular: that of Yvonne Zimmerman, who has a book under the title Other Dreams of Freedom, and then one of my own advisers, Elizabeth Bernstein’s work on what she called the sexual politics of neo-abolition, that documents a really interesting strange-bedfellows-coalition between Evangelical Christian and radical feminists, particularly on the issue of trafficking. But inasmuch as my work is concerned, I think that this actually is a good opportunity to talk about how the work fits into your wonderful volume on religion and the techno-politics of development, because I’ve really seen that religious organisations used the secular politics of rights and development alongside evangelical goals of proselytisation, so that the two are almost mutually interchangeable.

GB: Right

ES: And I think that vocational training has become a really, really popular technical solution for human trafficking, and particularly around something like prostitution, which is framed as a hugely moral problem, and which is framed as an absolute worst choice for a woman in the Global South who has no other options. And so, you see everybody from USAID to these grassroots religious organisations trying to think of ways to retrain people, to provide vocational training, as way of offering other alternatives to sex work. The main problem around it is that when you’re still training people in menial and manual low-wage labour, it still is not much of an alternative. So jewellery is one such menial low wage job, but it’s just one of the numerous commodities that’s now sold as a part of the anti-trafficking movement. You see everything from bedspreads to silk pyjamas being made in India, to traditional Henna craft and silk scarves coming out of Mongolia. And I think these are all part of a concerted attempt among anti-trafficking organisations to, what they call, “leverage the market-place”, to raise funds and awareness around the issue of trafficking. And I think one of the reasons why religious organisations have had to turn to social enterprise is, for the United States as an example, faith-based organisations are often excluded from certain kinds of federal or government funding when religious proselytisation is a core goal of theirs. And also, as religious organisations, they’re able to tap into huge bases of church-goers, parishioners, who see social justice goals as inextricable from Christian theology. And so I think that there’s been a real turn, on the part of churches, to recognise social justice in a reasonably complicated world. And – in a more shrewd, market-based, calculated turn – to find ways for faith-based organisations to fund themselves when they can’t seek other sources of funding.

GB: Right. So we’ve been talking about faith-based organisations, Evangelical movements in the United States, but it’s interesting to see what is happening in the other two field sites you chose which are Thailand and China. And Thailand and China provide two very different legal contexts for the work of Christian NGOs. So, Elena, how do these different juridical and policy frameworks influence the ways in which these NGOs implement their projects on the ground, and how do local perceptions of the articulation between aid and Christianity take shape in these very different contexts?

ES: I think that one of the greatest empirical paradoxes of this project is still that you could have the exact same American Evangelical Christian jewellery project operating in both Thailand and China, which we understand to be vastly different in terms of their political economic regimes. And so, one might classify as Thailand officially as a democratic monarchy, whereas China is more often understood as post-socialist authoritarian (15:00). The way that this plays out is that concretely, on the ground, Thailand offers over three hundred missionary visas to foreigners every year. And that means that foreign missionaries constitute one of the largest sources of tourist income – expat populations – and that their comings and goings are very rarely monitored. But it’s completely legal to be a foreign missionary in Thailand and it’s absolutely prevalent. You know, if you show up to any of the large cities there are public gatherings, churches, Christian churches that foreigners can attend. You contrast that to China which is notoriously restrictive of religious practice and which absolutely would see the presence of American Christians as a threat of imperialism. There are very few places for Chinese Christians to practice. They are almost completely relegated to what are called “home churches”. And as a foreigner, there are like single-designated places where Christian who are foreigners can practise in China. So that’s just the religious atmosphere. Combined with their atmosphere towards foreigners, it’s vastly different from China in Thailand. How this plays out within vocational training organisations for sex workers is, in Thailand sex workers who’ve chosen to work as jewellery makers are able to treat that more as any other kind of job that they might choose. So they’re not required to live on site. They rent an apartment, in Bangkok. A lot of them have part-time jobs, or are actually on full-time jobs working up to forty hours a week because of the pay cut that they have to take from being sex workers to becoming jewellery makers. It just doesn’t provide them with a living wage. And by contrast, in China, because the organisation has to be more careful about the scrutiny of the local police and government censorship, they require all workers to live on site in a mandatory dorm and there’s no way that any of those workers would be able to have a part-time job. And workers definitely feel a bit more stifled in China. And I think one larger difference in how this affects workers’ experience of religion is that in Thailand, given that freedom – or relative freedom – of religion, about 30% of people under rehabilitation have actually converted to Christianity. Whereas in China, where a history of conversion isn’t as prevalent, there are very, very low – it may be one or two people converted in the decade that I’ve studied these organisations.

GB: Right.

CS: Well, thank you very much for these very insightful and precise answers that can give us a grasp of what is going on in those countries. Just, maybe, a last question that is more general: is there anything that you would like to add, as a kind of concluding note, about what we have learned about faith-based activism in this field?

ES: I think the takeaway that I would love listeners to have is hopefully not that faith-based organisations in particular are flawed in their approaches, but that it really is anti-trafficking or human trafficking or sex trafficking as a concept that is flawed and misunderstood, and needs to be interrogated more clearly. Because, ultimately, my work argues that by transforming sexual labour into low wage manual labour these organisations are able to meld Christian ideas around good morals and salvific evangelism within secular development goals around decent work. But these should not be satisfying because we’re living in a world without decent work options (20:00). And I think the last thing that I’ll say about this, or that I’d further caution, is that there’s a growing trend moving away from the Palermo Protocol and definitions of human trafficking, shifting to an increasing number of people wanting to use the term “modern day slavery”. And I think what modern day slavery signals is a gesture towards pinpointing extreme and absolute cases of human suffering. Faith-based organisations and secular rights-based organisations both need to expand their purview of work into maybe taking a little bit of morality out of what we understand is good work, and listening to migrant workers, sex workers around the world who are telling us the different conditions that they’re looking for. So I think what I was saying was that by looking at, and fetishising theses extreme cases of human suffering – the one-off cases in brick kilns or in full sexual slavery – we don’t get to understand the hundreds of people who are seeking to have better lives, working in those areas, where there can be incremental changes for worker health, safety and better access to labour rights and working conditions across the board.

GB: This was really inspiring. Thank you very much, Dr Shih, for joining us at the Religious Studies Project.

CS: Thank you, Elena.

ES: Thank you so much to both of you, and for all of your hard work. And I can’t wait to hear the rest of the series.

GB: Thank you Elena.

Citation Info: Shih, Elena, Giuseppe Bolotta and Catherine Scheer. 2017. “Christian Evangelical Organisations in Global Anti-trafficking Networks”, The Religious Studies Project (Podcast Transcript). 27 November 2017. Transcribed by Helen Bradstock. Version 1.1, 17 November 2017 Available at: https://www.religiousstudiesproject.com/podcast/christian-evangelical-organisations-in-global-anti-trafficking-networks/

All transcriptions for THE RELIGIOUS STUDIES PROJECT are currently produced by volunteers. If you spot any errors in this transcription, please let us know at editors@religiousstudiesproject.com. If you would be willing to help with these efforts, or know of any sources of funding for the broader transcription project, please get in touch. Thanks for reading.

This work is licensed under a Creative Commons Attribution- NonCommercial- NoDerivs 3.0 Unported License. The views expressed in podcasts are the views of the individual contributors, and do not necessarily reflect the views of THE RELIGIOUS STUDIES PROJECT or the British Association for the Study of Religions.

South American church-state relations

imgPolitics and social institutions are inseparable. Whether we take a look at small-scale or complex societies, we can find that politics is involved with economics, kinship with hierarchy, and of course, religion with the state. The relationship between the last two has been shaped by numerous processes throughout human history; but, if we place our attention in the history of the western world, we can identify a turning point, one that started with the first waves of enlightened thought (eighteenth century), continuing with the posterior massive drop-out of catholic religiosity, and culminating with the total separation of religion and the state. In this podcast, Sidney Castillo interviews professor Marco Huaco Palomino as he addresses the nuances of secularity in several Latin American countries.

You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us. And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, Richard Dawkins memorabilia, and more.

Gods and Demons, Scholars and Lawyers: Brief Reflections on American Religion and Law

Talking to lawyers is a real skill, and Eric Mazur is very good at it. In the subfield of traditional American church-state studies, legal historians, lawyers, lobbyists, and religion scholars convene for conservation and debate, mostly about First Amendment jurisprudence. As Mazur explains in his RSP interview, that conversation has in recent years lost its place, at least at the American Academy of Religion, and so he has revived it with a Religion and Law discussion group, which has met concurrently with AAR for each of the last two years (full disclosure: I have participated in both meetings). These conversations—at the AAR meetings and in the field more generally—are lively, rigorous, and fascinating, but sometimes frustrating. Unlike many other fields, the range of topics is actually quite small but the variety of approaches is wide. This self-imposed limitation was, according to Mazur, a primary reason for forming the discussion group. This is a group of people who come from very different backgrounds and perspectives—and with different goals—but can talk about the same things, namely, court cases dealing with the First Amendment’s establishment clause and free exercise clause. This is the opposite of many subfield groups, who are organized by a method (ethnography, for example) and use that same method on vastly different data sets. Here, we have a quite small shared data set but diverse methods. Everyone can speak at length, using shorthand, about certain acts, cases, decisions, and dissents, and everyone in the room can follow it. But why these people care, and, more practically, what they’re trying to do, can result in some talking-past each other. Few people are as good as Mazur at bridging these interests and assembling the components for a productive exchange.

The interview includes a number of interesting exchanges, as Mazur describes the state of the field, the advent of the discussion group, and his own career. I was particularly interested in Mazur’s answer to the question about why there is an increasing interest in religion and law. He noted that some religion scholars got into studying the law through studying New Religious Movements (NRMs) or minority religions, as they tend to be treated differently under the law. One of Mazur’s books, here.) This focus does bring out a possible tension between two approaches. Are we studying the law, the Supreme Court decisions, and legal language, etc., or are we studying religious groups and how their practices and beliefs shape and are shaped by law? Of course, it can be both, but the different emphases can evince different goals among scholars. Mazur highlighted the tension between those who have a “normative notion” of religious freedom and those who do not (at least not so explicitly.) On the normative side are not just lawyers, but also theologians, philosophers, lobbyists, and even clergy members. Others take a more descriptive/analytical approach, seeing the law as an institution with effects on American (religious) life and thus worth studying in historical or sociological ways.

In my view, there are two ways that the field of religion and law should expand. First, I think that “law” has been taken to mean primarily the First Amendment’s religion clauses, and there are many other interactions between religious communities and the law worth studying. Mazur mentions this briefly in the interview. Religion scholars would do well to learn about tax law or tort law or intellectual property. Law is not simply religious freedom. And, furthermore, religious freedom means a lot more than First Amendment law. The discourse of freedom, the various states of freedom and un-freedom under which subjects live, and the processes by which freedom is manufactured and protected are all topics that could be taken up by scholars of religion and law. Second, delimiting our area of focus to the United States can miss the international context for American religious law. On one hand, the limited scope makes sense, since American law does apply, for the most part, to America. However, American religious freedom, understood as a human right, is being naturalized and exported. This has tremendous ramifications for foreign policy, religious nationalism, and diplomacy. Constitutional scholars who focus on religion largely have ignored these important developments.

That being said, I think there is a place for the type of “traditional” constitutional conversations Mazur has advocated and facilitated. As I stated above, it is enjoyable and somewhat rare to have a room (or some non-physical space) full of people who speak the same language, who know what Reynolds and Schempp and Boerne v. Flores and RFRA mean. It can lead to productive and detailed conversations. Historians and other scholars contribute to public understanding, but they also can be involved in shaping the law, through an amicus brief or as an expert witness, for example. Many religion scholars (though of course not all) are wary to do anything that smacks of “advocacy.” However, if we are writing about contemporary laws and their impact on religious communities, or about the logic structuring certain laws and cases, our work can have effects even if we do not intend them. So, why not be intentional about it in the first place? Or at least be willing to engage in conversation, if not outright “political” action? If we are going to engage in this type of public work, we need a common language to speak. Working with academics can be an unpleasant experience, and our analytical goals can distract from the winning cases or lobbying for particular causes. But, if lawyers and scholars are going to talk to each other, it has to be at least somewhat on the lawyers’ terms.

References

Gordon, Sarah Barringer. The Spirit of the Law: Religious Voices and the Constitution in Modern America. Cambridge, Mass.: Harvard University Press, 2010.

Mazur, Eric Michael. The Americanization of Religious Minorities: Confronting the Constitutional Order. Baltimore: Johns Hopkins University Press, 1999.

Su, Anna. Exporting Freedom: Religious Liberty and American Power. Cambridge, Mass.: Harvard University Press, 2016.

Wenger, Tisa. We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom. Chapel Hill: University of North Carolina Press, 2009.

 

Religion and American Law

In this interview, Professor Eric Mazur discusses a variety of issues relating to religion and law in the USA, such as the evolving state of First Amendment jurisprudence, the Religious Freedom Restoration Act, dominant trends in the study of religion and American law, and controversial legislation such as the Supreme Court’s decision in Burwell v. Hobby Lobby. Dr. Mazur also discusses his efforts to help cultivate a space at the American Academy of Religion that is explicitly devoted to the study of religion and American law. This interview provides an introduction and summary of this increasingly important field.

Minority Religions and the Law, and our general introduction to Religion and the Law with Winnifred F. Sullivan. You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us . And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, potpourri, vintage cars, and more.

Religious Studies Project Opportunities Digest – 2 February 2016

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Time and Myth: The Temporal and the Eternal

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Masaryk University, Czech Republic

Deadline: March 15, 2016

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Fetish Boots and Running Shoes: Indecent Theology Today into Tomorrow

July 8, 2016

University of Winchester, UK

Deadline: March 7, 2016

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AAR 2016: Religion and Public Schools: International Perspectives Group

November 19–22, 2016

San Antonio, TX, USA

Deadline: March 1, 2016

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Fieldwork: Doing Ethnographic Research

June 24, 2016

Birmingham City University, UK

Deadline: March 25, 2016

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Events

Inform seminar: New Religious Radicalisms

May 21, 2016

London School of Economics, UK

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Arbeitskreis interdisdisziplinäre Hexenforschung

February 18–20, 2016

Stuttgart-Hohenheim, Germany

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Research Methods in the Study of Religion

University of Kent, UK

Deadline: February 5, 2016

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Jobs

2 PhD positions in sociology project: “Postsecular Conflicts”

University of Innsbruck, Austria

Deadline: February 15, 2016

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3 PhD studentships

Coventry University, UK

Deadline: February 19, 2016

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PhD position: “Multiple Secularities: Beyond the West, Beyond Modernities”

University of Leipzig, Germany

Deadline: February 5, 2016

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PhD studentship: Cognitive Science of Religion

Belfast, UK; Aarhus, Denmark

Deadline: April 29, 2016

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Visiting Fellowship

Nalanda-Sriwijaya Centre of the ISEAS-Yusof Ishak Institute, Singapore

Deadline: March 31, 2016

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Associate Professor, Full Professor: Jewish History/Studies

Case Western Research University, OH, United States

Deadline: March 1, 2016

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Postdoctoral fellowship

University of Pennsylvania, USA

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Instructor: Buddhist Studies

Antioch University, OH, USA

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Postdoctoral Fellowship: Chinese Buddhism

Columbia University, NY, USA

Deadline: April 20, 2016

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New Religious Movements and Contemporary Discourses About Religion

As I listened to Susan Palmer’s RSP interview and read about her new co-authored book (with Stuart A. Wright) Storming Zion: Government Raids on Religious Communities (2015), I was reminded why NRMs make such useful case studies in the religious studies classroom. From a pedagogical perspective, the study of NRMs offers a valuable resource for creative teaching and theorizing about religion. In my introductory classes, for example, I use Scientology to illustrate how NRMs have negotiated with the state in their quest for legitimacy. There is plenty of great scholarship to assign, and students are often surprised to learn how seemingly unrelated government agencies–the Food and Drug Administration, the Internal Revenue Service, the Federal Bureau of Investigation–helped legitimate Scientology’s “religion” status.

One of the most useful parts of Palmer’s interview, then, is her insistence on paying attention to the words people use to describe NRMs. Winnifred Sullivan, in her recent book, argues that the US government (and the US Supreme Court in particular) increasingly understands “religion” as “being neither particularly threatening nor particularly in need of protection” (17). The trend, as Sullivan and others have noted, is increasingly to see people as religious by default, even (and perhaps especially) those people who do not see themselves as religious. What, then, are we to make of religious groups whose relationship with the state do not fit this mold? How do we explain relationships so contentious that they result in raids and gun battles? At first glance, the events chronicled in Palmer’s Storming Zion seem to be outliers. Yet Palmer and Wright suggest elsewhere that these kinds of raids are more common than one might suspect. Why?

One possible answer is that increased attention to religion by international governments and NGOs has not necessarily resulted in less problematic models of religion being used by these governments and groups. As Elizabeth Shakman Hurd has pointed out in her recent book, what scholars understand as “religion” often makes for unwieldy government use. Hurd demonstrates how government classifications of religion are by necessity rigid and slow to respond to change, leading governments to understand and engage religion in a clumsy–and in Palmer’s studies, dangerous–fashion.

Of course, most of the large-scale government efforts directed at cultivating appropriate forms of religion aren’t directed at the kinds of groups Palmer studies. It boils down to size, as Palmer and Robertson both note: smaller groups can be more easily dismissed or ignored by those in power. This is another example of the way in which governments separate religious groups into what might be called “serious” and “unserious” camps, an approach sometimes replicated by the scholars who study them. Both Palmer and Davidson call for more work to be done to change this status quo. They would like to see groups with little political or social capital treated similarly to “big name” religions–the groups that get chapters devoted to them in World Religions textbooks. They would like to see, to paraphrase JZ Smith, how the “exotic” NRMs are just another example of “what we see in Europe everyday.” Smith notes the difference by explaining it as a tension “between religion imagined as an exotic category of human experience and expression, and religion imagined as an ordinary category of human expression and activity.”[1] (1). Thus, as Palmer points out, even the seemingly “exotic” components of NRMs–things like brainwashing and deprogramming–should be both historicized and theorized.[2]

These considerations are timely ones. Though the interview focuses on what religion scholars might expect to hear on work related to NRMs–Raelians, Scientologists, millennial movements of various stripes–I was struck by how much of what was discussed would apply to Islam. Robertson and Palmer note how the media and popular culture tend to portray NRMs in particularly dismissive or fear-inducing ways. As events of recent weeks have again reminded us, what do we make of the fact that Islam is often discussed using similar language? The same kinds of militarized policing tactics directed at NRMs have, in recent weeks, been endorsed by a number of candidates for U.S. president as a means to control Muslims in the United States and around the world.

There’s a relevant history to this “NRM-ization” of Islam, particularly in the United States. Those interested in Palmer’s work, and in her work on government raids on NRMs, should also make time for Sylvester Johnson’s African-American Religions, 1500-2000, specifically his study of the history of the US government’s surveillance of and violence towards African-American Muslims. Johnson’s work highlights many of the tensions Palmer identifies: how classificatory criticism (“authentic” religion versus “cults”) bolstered state action against the political claims of new and emerging religious groups (in this specific case, the Nation of Islam). As a result, Johnson argues, “US officials increasingly resorted to the specific grammar of terrorism to represent political Islam.”[3] While scholars do not usually place global Islam within the category of new religious movements, Johnson shows how this early racialization of Islam within the United States shapes how global Islam is treated by the US government today.

For someone like myself, interested in questions of law and religion, the tension between emerging religious groups and state authorities is one of particular importance. Susan Palmer’s interview is a great example of why new religious movements make such good tools with which scholars can think about the study of religion.

[1] Jonathan Z. Smith, Imagining Religion: From Babylon to Jonestown (University Of Chicago Press, 1982), xii.

[2] For one excellent and recent example, see Matthew Dunne, A Cold War State of Mind: Brainwashing and Postwar American Society (Amherst: University of Massachusetts Press, 2013).

[3] Sylvester Johnson, African American Religions, 1500–2000: Colonialism, Democracy, and Freedom (Cambridge University Press, 2015), 382.

Minority Religions and the Law

cult” and “sect” uncritically. Nevertheless, outside of academia, the language of “cults” continues to be used, and particularly through the law, has an affect on the lives of real people. Susan J. Palmer joins David G. Robertson to discuss the intersection between new or minority religions and the law. Professor Palmer describes how she came to study these minority groups, and to realise that they were often being misrepresented, or at least unduly targeted. Discussion ranges from Scientology in France to the Branch Davidians and the Nuwaubians in the US, with issues of secularity, race and “brainwashing” come to the fore. A fascinating overview for anyone interested in how the discourse on “religion” operates in the contemporary world.

Religion and the Law (Winnifred F. Sullivan), Studying “Cults” (Eileen Barker), and Is Britain still a Christian country? (Linda Woodhead), and feature essays by Daniel SillimanEssi Mäkelä, and Kevin Whitesides. You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us . And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, fake fir trees, playing cards, and more!

Religion, Secularism and the Chaplaincy

As Sullivan and other religious studies scholars complicate terms like religion and secularism, reducing these terms to near incoherence, and insist on the constant intermingling of the sacred and the secular, they leave jurists and legislators in a predicament with important practical consequences.

Religion, Secularism, and the Chaplaincy

By Dusty Hoesly, University of California, Santa Barbara

Published by the Religious Studies Project, on 24 April 2013 in response to the Religious Studies Project Interview with Winnifred F. Sullivan on Religion and the Law (22 April 2013)

Winnifred Fallers Sullivan, Professor and Chair of the Religious Studies Department at Indiana University, Bloomington, may be the supreme interpreter of the intersection of law and religion in American society today.  Each of her three books—Paying the Words Extra, The Impossibility of Religious Freedom, and Prison Religion—treats individual legal cases both textually and anthropologically, examining their particular cultural and legal contexts as well as their wider import for discourse in American law and society generally.  Her work is attuned equally to debates within the field of religious studies, especially to how scholars of religion constitute the object of their study.

In this interview for The Religious Studies Project, Sullivan focuses on her latest project, which examines chaplaincy in secular settings, as well as on her larger body of work.  Her recent presentation, “Ministries of Presence: Chaplains as Priests of the Secular,” uses chaplaincy as a lens for thinking beyond her previous work in critiquing constitutional and legal protections for religious freedom, and arguing for the instability and incoherence of the category of religion as a basis for legal regulation.  Putting aside her study of the management of religion in constitutional settings, in this project Sullivan examines how religion and law shape each other on the ground.  She concludes that chaplains have come to serve a role of ministering to what is increasingly understood as a universal spiritual need, which she labels a “naturalization of religion.”

For Sullivan, the figure of the chaplain in Western Christendom has always been an ambiguous figure, a minister whose duties lie away from church authority or congregational demands.  In modern secular institutions such as hospitals, prisons, and the military, the chaplain’s role remains ambiguous since, unlike doctors, guards, or soldiers, the chaplain is an explicit broker between the sacred and the secular.  The chaplain is paid by secular institutions and beholden to secular authorities, despite the religious character of the chaplain’s work or the chaplain’s religious allegiance.  Chaplains may find themselves obliged to endorse secular missions, such as nationalism or militarism, that run contrary to the chaplain’s religious mission.

The role of the chaplain and the social perception of chaplaincy in America have both changed significantly since World War II, Sullivan argues.  In the mid-twentieth century, patients, inmates, and soldiers imagined that chaplains had specific ministerial resources that were particular to each denomination, such that Catholic priests, for example, could offer services that no other denomination’s chaplains could.  Today, however, chaplaincy is far more generalized and less identified with any particular tradition.  Contemporary chaplains practice a “ministry of presence,” a stripped-down form of witness (to use a Christian word) that is a “suffering with” those seeking spiritual guidance.  Chaplains are trained to de-emphasize their individual religious identities so that they can provide a non-imposing, non-coercive presence, letting clients instead take the lead in terms of any religious specificity.

In her presentation, Sullivan observes the rise of credentialing as a major shift in chaplaincies during the 20th century.   Credentialing, rather than mere religious training, is now required in order to serve as a chaplain.  Would-be chaplains must earn a Master of Divinity degree, intern with a clinical pastoral education program, and obtain an ecclesiastical endorsement, all of which must be accredited or recognized by the government.  These cooperative efforts between state and religion have resulted in the standardization and professionalization of the chaplaincy.  Anyone can be a chaplain today, Sullivan argues.  It becomes a white collar job, one requiring expensive educational training and a lengthy apprenticeship.  As Randall Collins has argued, the credential becomes symbolic of one’s ability to do the actual work.

For chaplains who must serve a diverse clientele, including Roman Catholics, Wiccans, Southern Baptists, and atheists, specific denominational beliefs and practices, as well as religion itself, become “cultural resources” (to use James Beckford’s term).  Religion loses its claim to be sui generis, instead revealing itself to be socially constructed according to the practical needs of the moment when a client requests the services of a chaplain.  This offering of non-denominational spiritual advice to any and all seekers is illustrative of the secularization and commoditization of the chaplaincy.

But the process is not complete and, therefore, neither is Sullivan’s analysis.  Atheists and secular humanists may be consumers of chaplaincy services, but they are not yet permitted by the government to serve as chaplains in hospitals, prisons, or the military.  Even if the credentialing process in theory is open to any person, from whatever background, as Sullivan claims, this does not mean that anyone can become a chaplain in actual practice.  Groups such as the Military Association of Atheists and Freethinkers are seeking recognition by the Armed Forces Chaplains Board, but they have been unsuccessful so far.  That said, many prisons now include yoga and meditation groups, blurring the boundary between secular and religious practices and challenging the role of prison chaplains as exclusive brokers between the sacred and the secular.  And some higher education institutions, including Harvard, Rutgers, Stanford, Columbia, and American University, now incorporate humanist chaplaincies, responding to a growing call for guidance that is explicitly secular.

How might these humanist movements complicate Sullivan’s analysis?  Sullivan argues that in contemporary American jurisprudence religion has become a universal human phenomenon, albeit one that takes many forms.  But in the instances noted above, we see people who reject religion and yet who desire counseling and meaningful ritual during difficult times in their lives.  These people feel that they are not being best served by the supposedly secularized chaplains which Sullivan describes.  They want a chaplain with a particularly secular worldview rather than a naturalized non-denominational Protestantism which they perceive as coercive and not representative of their beliefs.  While Sullivan maintains that today’s chaplains are priests of the secular, actual secular people are excluded from the chaplaincy.

As Sullivan and other religious studies scholars complicate terms like religion and secularism, reducing these terms to near incoherence, and insist on the constant intermingling of the sacred and the secular, they leave jurists and legislators in a predicament with important practical consequences.  If religion and secularism are unstable and interpenetrating categories in American law, as Sullivan has argued, how can bureaucratic functionaries or judges justify excluding secular humanists from the chaplaincy?  Despite Sullivan’s claims about the naturalization of religion and the homogenization of the chaplaincy, American law still recognizes distinctions between what is religious and what is secular, and so do the people who consume and seek to provide chaplaincy services.

This material is disseminated under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. and can be distributed and utilised freely, provided full citation is given.

About the Author

Dusty Hoesly is a doctoral candidate in the Department of Religious Studies at the University of California, Santa Barbara, specializing in Religions of North America.  His research focuses on religion and irreligion in the American West, specifically the values held by people who self-describe as not religious, how those values developed, how they translate into social or political action, and how irreligious people interpret experiences that stand apart from ordinary life.  Incorporating fieldwork, surveys, and historical and material culture research, this project will help explain the growth of religious “nones” in the U.S. and reexamine the categories of sacred and secular in contemporary society.  Other research interests include religion in the American West, comparative secularisms, liberal evangelicalism, and religion and politics. He has previously published The Last Best Hope of Earth? Bron Taylor and the Limits of Dark Green Religion for the Religious Studies Project.

Bibliography

  • Collins, Randall. The Credential Society: A Historical Sociology of Education and Stratification. New York: Academic Press, 1979.
  • Sullivan, Winnifred Fallers. Paying the Words Extra: Religious Discourse in the Supreme Court of the United States. Cambridge, MA: Harvard University Press, 1994.
  • Sullivan, Winnifred Fallers. The Impossibility of Religious Freedom. Princeton, NJ: Princeton             University Press, 2009.
  • Sullivan, Winnifred Fallers. “We Are All Religious Now. Again.” Social Research 76.4 (2009): 1181-1198.
  • Sullivan, Winnifred Fallers. Prison Religion: Faith-Based Reform and the Constitution. Princeton, NJ: Princeton University Press, 2011.

Religion and the Law

Within modern American society the meme of a separation of Church and State exists without a doubt; however, there is very little evidence to actually prove that this separation exists, functions as such, or indeed that it ever existed. In the textbooks, popular news outlets and in the political arena religion is supposed to be wholly withheld-expelled in favor of majority rule. However, when we turn our attention to state-managed organizations such as the federal prisons or state forest services or support for military veterans, we find that the lines are blurred.

With an eye to this seemingly ironic phenomenon Winnifred F. Sullivan presented a lecture entitled “Ministries of Presence: Chaplains as Priests of the Secular” at Arizona State University as part of the ASU Center for Religion and Conflict’s lecture series. Excerpted from her upcoming book of the same title, Sullivan considers the oversight, regulation and licensure of religious chaplains within the American Veterans’ Administration, as well several other governmental and on-governmental institutions. In this interview with Chris Duncan (Arizona State University), the discussion centers predominantly on the world in which many chaplains come to find themselves due to a “new kind of religious universalism”; from having to be prepared to minister across the borders of their own religious traditions, as in the case of a Catholic chaplain being required to assist Jewish or otherwise non-Catholic practitioners in a federal prison or a chaplain working with the state of Maine Warden Service. Sullivan asks whether we really have a separation of the Church and the State, how do we insure that everyone’s religious needs are being met within secular institutions like the Veterans’ Administration, and how does the State license and approve of applicants to the chaplaincy- how does, should, could an ostensibly secular federal organization approve or disapprove of religious ministers within its ranks.

You can also download this interview, and subscribe to receive our weekly podcast, on iTunes. And if you enjoyed it, please take a moment to rate us, or use our Amazon.co.uk or Amazon.com link to support us when buying your important books etc.

Sullivan is the Department Chair and Professor of Religious Studies at Indiana University Bloomington as well as Affiliate Professor of Law in the Maurer School of Law at the same institution. She holds both a J.D. and a PhD. from the University of Chicago and is the author of  Paying the Words Extra: Religious Discourse in the Supreme Court of the United States (Harvard 1994), The Impossibility of Religious Freedom (Princeton 2005), and Prison Religion: Faith-Based Reform and the Constitution (Princeton 2009).

Podcasts

Separating Religion and Government…But What Is Religion?: A Look at the US Supreme Court

The United States Supreme Court will hear arguments in a key religious freedom case, Espinoza v. Department of Revenue, in January 2020. In that case, the Court will decide whether a taxpayer-funded scholarship program can, even indirectly, fund a private religious school. The case has ignited a debate about no-aid clauses to religion in state constitutions and, more broadly, the separation of church and state. But is it possible ever truly to separate church and state? And how do courts decide what is religious–and therefore separable from government?

In this podcast, noted religious liberty lawyers Maggie Garrett (Americans United for Separation of Church and State) and Jennifer Hawks (BJC) discuss the Espinoza case before diving into other pivotal, recent decisions–including Burwell v. Hobby Lobby, Trinity Lutheran Church v. Comer, and Employment Division v. Smith–that raise questions about how courts define religion and religious freedom. We discuss how claims for religious exemptions offer insight into operating definitions of religion and the ways those definitions are predicated on sincerely held beliefs and/or actions (whether those actions take place within the four walls of a house of worship or beyond those walls). In other words, what do religious exemptions tell us about what counts as “truly” religious? Are beliefs alone protected? Or behaviors too? And how does a Court decide whether it has the authority to grant an exemption to a neutrally applicable rule or to forbid actions linked to sincerely held beliefs, religious or not? Along the way we discuss taxes and religion, dignitary harm, the “religious marketplace” and more.

Download this episode and subscribe to receive our weekly podcast on iTunes, Spotify, or YouTube. If you enjoyed it, please take a moment to rate us and consider becoming a member of our Patreon community with access to extra conversations and shorter classroom versions of our episodes. Or use our Amazon.co.uk, Amazon.com, or Amazon.ca links to support us at no additional cost when buying books, groceries, or gifts.


Separating Religion and Government . . . But What is Religion? A Look at the US Supreme Court

Podcast with Maggie Garrett and Jennifer Hawks (6 January 2020).

Interviewed by Benjamin Marcus

Transcribed by Helen Bradstock.

Audio and transcript available at:

https://www.religiousstudiesproject.com/podcast/separating-religion-and-government-but-what-is-religion-a-look-at-the-us-supreme-court/

PDF for download

Benjamin Marcus (BM): Hello, and welcome to the Religious Studies Project. I’m here today with Jennifer Hawks and Maggie Garrett to talk about religion and law in the United States. What qualifies religion, and what merits religious freedom protection? We’ll discuss those topics and more by taking a deep dive into the cases before the Supreme Court in the term beginning in October 2019. We’re grateful to have two legal experts here with us today, to help us understand what religion means in the United States courts. Jennifer Hawks is the Associate General Counsel at the BJC. She provides legal analysis on church-state issues that arise before congress, the courts and administrative agencies. Before coming to the BJC, Hawks was the director of advocacy and outreach services for the Family Abuse Centre in Waco Texas, where she conducted a legal clinic and led educational programmes. She previously worked for two judges in the state of Mississippi and served as a staff attorney for the state department of Human Services. Hawks also served in both paid and volunteer ministry positions in Tennessee, Mississippi and Texas. A graduate of Mississippi College and the University of Mississippi School of Law, Hawks earned a master of Divinity degree from George W. Truett Theological Seminary at Baylor University She’s a member of the US Supreme Court, Texas and Mississippi bars and she was ordained into the Gospel Ministry by McLean Baptist Church in McLean, Virginia. Maggie Garrett is the vice president for public policy for Americans United for Separation of Church and State. She represents Americans United before Congress, and in the Trump administration, and she oversees the state legislative programme. For the last eight years she has served as the co-chair of the National Coalition for Public Education, a coalition of more than fifty national organisations that opposes private school vouchers. She’s also the chair of the Coalition Against Religious Discrimination. And before Maggie joined the AU’s legislative department, she served as the legislative director and staff attorney at the ACLU of Georgia, where she litigated high-profile cases on issues including the separation of church and state, free speech, reproductive rights and voting rights. She was also a fellow at the ACLU of Alabama where she participated in litigation to remove Judge Roy Moore’s Ten Commandments display from the Alabama Supreme Court. Maggie graduated from Hamilton College and the George Washington Law School. So, two fantastic people who can walk us through this Supreme Court term and talk to us about religion and law in the United States. So we’ll begin with a question for Jennifer, which is really about a bit of context. So tell us a little bit more about the case before the Supreme Court, this term, that deals with religious freedom. I know that while the Supreme Court receives thousands of requests to take up cases each year, they only hear about two percent of them. So what is the religious liberty case that they’re taking for this term?

Jennifer Hawks (JH): Well, it’s a pleasure to be here. And while the court has taken one case already, it’s important to note that the court could take additional cases as the year progresses – they take cases throughout the year. But the case for this next year is Espinoza versus Montana Department of Revenue. And it’s a case involving a state tuition tax credit programme, which is a type of voucher where state money ends up supporting financially religious and non-religious private schools. And the Montana Supreme Court struck down the programme, the parent who brought suit to enforce the programme appealed to the Supreme Court, and the US Supreme Court took the case. And we’ll have arguments later on in the term.

BM: Great. And, maybe Maggie, could you tell us a little bit more about the school voucher programme and how they operate it in the United States – what their role is in private and public education?

MG: Sure. So in the United States we have public schools, and that has been the primary way that we’ve funded schools over the years, for many years. But what’s happening recently is there is a real push to have private school vouchers – which essentially means that you take taxpayer dollars and you funnel them to private schools. And what happens is that it primarily funds religious schools. And the reason why is because religious schools are usually cheaper than secular private schools. And that is often because the religious entity that they are associated with will subsidise the education. And so they’re cheaper, and then private school vouchers predominantly fund them. And at issue in this case is whether or not you can have a tuition tax credit at all. Can you give money to a secular school and say “No. We’re not going to give money to a private school that’s religious”? So that’s really what’s at issue here. (5:00) For the first time, someone wants the Supreme Court to say that a state has to fund religious education if they’re going fund secular private schools.

BM: I imagine that one of the first questions by people who do want to support these tax credits going to religious school is that the US Constitution says that you shouldn’t favour one religion over another. You shouldn’t favour religion over non-religion, or vice versa. So why isn’t a tax credit that goes to a private non-religious school – or funding that goes to public schools – not favouring non-religion over religion? Or is that a false binary? Is it not so easy to say what religion is, and what is not religion?

MG: So traditionally, in the United States, we have said that freedom of religion means that no one is taxed by the government to fund anyone’s religion. So, as a Lutheran, I am not taxed to pay for Lutheran schools. I’m not taxed to pay for anybody’s religion, whether I agree with it or not. And that has really been the standard. And we have been slowly seeing the courts chip away at that. And we’ve been slowly seeing them say that, “It’s actually ok for you to fund tax dollars going towards religious education.” I don’t think that it is discrimination against religion to say that tax payer dollars are not going towards religious activities, religious education, religious learning. In my mind, establishing religion is really about funding religion education. That’s sort-of at the core of religion, right, is teaching your religion? Here we are teaching the religion to children and that’s sort-of the rock of the church is teaching young children, and raising them in the church. It is not, in my mind, discrimination against religion. It’s the government maintaining neutrality, and the government saying “We just stay out of it. We don’t fund it.” They get a lot of exemptions and then they also don’t get government funding.

JH: I would add, as a Baptist minister and a constitutional lawyer, that the government not funding religious schools and religious organisations is what has allowed religion to flourish in our country in a way that is unmatched in any other country. It’s up to us, as religious people, to fund our religious practices and to fund our religious communities, and to reach out to our neighbours to ensure that those communities continue. And so, because of this, the American church has to be responsive to the community around it. It has to find its place and its role. Because it’s not going to get a cheque every month from the government, whether people attend or not. So to fundamentally alter the way that our religious communities are funded would be very harmful to the communities themselves. Religious schools have a lot of freedom and autonomy that are not experienced by public schools or public charter schools, or other types of school systems. And it’s precisely because of that autonomy that we should want the maximum amount of separation so that religious schools are accountable to religious communities and not accountable to tax payers who could care less whether or not that religious community flourishes or dies.

BM: Right. So I’m hearing a lot of arguments for why religious freedom is good not only for government, but also for religious institutions. And the separation of church and state allows religious communities a great deal of autonomy. It allows them – as the argument often goes – to flourish in the United States. And that really, at root here – from what I’ve heard from both of you – is the question of taxpayer funding: that taxpayer funding should not flow to religious institutions. I think that brings up another case that was already argued at the Supreme Court and decided, which is the Trinity Lutheran case – which is being brought up in the arguments for Espinoza. So could you walk us through the Trinity Lutheran decision and what it meant for religious freedom? In part, I’m very interested in exploring, with Trinity Lutheran, where a court sort-of sees religion ending and some other kinds of programmes beginning. Or deciding whether the funding in that particular case was supporting a religious institution as a religious institution, or whether it was really supporting something else. So could you talk a little bit more about that please?

MG: Sure. So in Trinity Lutheran, at issue was a state grant. And a state grant would help public and private schools and other non-profit organisation purchase rubber playground materials. It was made from recycled tyres and so there was a grant programme. And the religious school applies for the grant and they, like Montana, have a constitutional provision that says that they can’t spend money to aid religion. (10:00) And so the State of Missouri says, “I’m sorry, you’re not eligible for this tyre . . . this playground grant.” And so they said, “Well, that’s really just a discrimination: that you’re funding other secular organisations, but you’re not funding us, simply because we’re religious.” Now I would argue that that’s not what was happening. What was happening was that the government was saying, again, “You’re a religious school. We don’t aid you. We don’t tax you.” And so there’s a separation of church and state. But what the court held was that they were being discriminated against. And they were being excluded from the programme because of who they are. Because they were a religious entity. The Court made clear, though, that this was a really narrow decision and that they were talking about playground materials which wasn’t a religious item. It wasn’t translated into religious activity. That this case was, “You can’t discriminate against them because of who they are.” However, the government could still take into consideration how the money would be used. I mean, I think that is really the distinction here, is that they’re not not-funding religious schools because they’re religious schools, but because that money would be used for religious education. And religious schools normally entwine religion throughout the school day. It’s not as though they teach one subject and then they take a break and they teach religion. It’s entwined in what they do. There’s Bible studies, there’s mandatory religious activities, etc. And so this would really be a case about funding the religious activities, the religious education. It’s not necessarily about who they are.

BM: And I think that brings up a question that I heard at least in different sort-of moot courts that were leading up to the Trinity Lutheran case, which were really people pushing at the question of: what is a religious activity? So, is maintaining a playground a religious activity? Is buying textbooks for your math class a religious activity? Is buying textbooks for religious studies class a religious activity? Is maintaining . . . . If there’s a generally-available fund of money to keep up historically significant buildings in a community, and there’s a church that’s historically significant building, can those funds be used to repair the pews in that church? And what generally-available activities or services are not available to religious institutions? Whether that’s the fire department if there’s a fire . . . . Those are the kinds of questions that I was hearing. And I think what they’re getting at are questions of what is religion qua religion. What is religion really? And what is a secular activity or a secular programme or service? So, could you talk a little bit more about that? How did the Court come down on those questions? Did they have any answers to those questions? Or what are your thoughts about those questions?

JH: Well, in my opinion, the Court largely overlooked the establishment clause problems. And so they did find that this was just a public safety programme. So they compared it to something like a fire department responding to a fire in a church. Or a police department responding to some type of criminal activity happening at the church. And so they said, “It’s the same thing. And there’s nothing particularly religious about the playground.” I would add a fact to Maggie’s summary, that this was not an independent religious school. This was a ministry of a church. So it was a church that had a preschool and it was that church ministry that had applied for this grant. And so BJC filed the brief and we really looked the history of these provisions. And we looked at why it’s important to have the separation. And we didn’t want to get into the question of: when can a government come onto a church property and say, “This is secular, so we get to fund it and we get to regulate it. This is religious, so we don’t.” And walk through your church property like that. We want churches to be able to have their independence and autonomy, and be able to make those decisions, and use their property how they see best fit to carry out their religious mission. And so we think that Trinity Lutheran muddied that water by saying that not only could the church apply for it, but that the state needed to pay them the money, contrary to their own state constitution provision which had been enacted in multiple parts of its constitution. I think they had four different provisions that talked about not aiding . . . not using tax payer money to aid religious institutions.

MG: Yes. And these are like the really hard questions. And not punting, but . . . you know, as a church-state separationist I feel like the courts have kind-of created this problem for us, at this point (15:00). So there used to be much more strict lines. And therefore you didn’t have to ask these questions of, is a playground religious? Or, are they going have religious ceremonies in the playground? Or, do they read religious books on the playground? It was much, much clearer – to prevent us having to get into those questions. And then as the courts – not to blame the courts entirely, I mean, Congress and states have been pushing the court to move this way – but as the court has been slowly chipping away at the wall of separation it is creating more and more problems. And it’s interesting because we kind-of get to the problem of “We can’t really say if it’s religious or not, so we have to allow it.” And so it’s almost by creating the problem, it’s inching along to further erode the separation of church and state. We created this problem and now we’re in a big mess.

BM: So maybe that’s a good opportunity to bring up another case that’s been decided in the last few years, the Hobby Lobby case, which held that closely-held, for-profit corporations could use RFRA to deny healthcare benefits to their employees even though the benefits were required by law. And part of the holding was that the Court said that the government did not make a compelling enough case why closely-held, for-profit corporations should be treated differently from religious non-profits. So could you talk a little bit more about that case, and its implications for what the religious organisation is?

MG: Sure. So the Religious Freedom Restoration Act – RFRA – is a federal statute that is supposed to protect religious freedom. The idea is that if your religion is burdened, you can go to the government and say that this government law or activity is burdening your religion. And the government has to have a compelling interest, and it has to be the least restrictive means for them to push the law on you. I know that’s a lot of legalese. But the question in that case was: does RFRA apply to corporations? And many of us said, “No. It doesn’t apply to corporations.” Like, what religion does a corporation have? It doesn’t. It was not envisioned that a corporation like Hobby Lobby, that has craft stores around the country, could get out of having to adhere to the law because they’re a religious organisation. So the Court really based that opinion in the statue itself. It said, “Let’s look at how they defined ‘person’.” They did a bunch of legal stuff, and said “‘Person’ included corporations, and there’s no reason why religious corporations are different than secular corporations. It applies to all corporations. They all get to use it if they say they have a religious objection.” And the danger there . . . I mean, I think that was dangerous to begin with. But now that is really seeping out into other areas of the law. So even if they were right – which I think they weren’t – that RFRA applied to Hobby Lobby, now the question is, what happens in other federal statute? So, for example, there is a federal statute that says that corporations can’t discriminate in hiring. And so then the question becomes . . . and there’s a religious exemption for that. So religious corporations can discriminate in hiring. And the Trump administration has been leaning towards, now, an interpretation that for-profit corporations, even there, could discriminate because they’re religious. So it is this complicated question, again, of where do you draw these lines? Is Hobby Lobby – who just happens to say “Our owners are religious” – do they get religious exemptions everywhere now? I remember back when the contraception regulations were being passed in the Obama administration. Someone said, “Well I think Taco Bell should be able to get an exemption from providing contraception.” And does it mean that MacDonald’s, and Taco Bell, and all these corporations . . . does it mean if you own a franchise of Taco Bell and you are religious, that you get to say, “Well, my Taco Bell is religious. And I get out of whatever I want, because I get a religious exemption.” I would say that far exceeds the line. But there are arguments today that that should be true.

JH: Yes. So I would agree that there are certainly groups that are looking to expand Hobby Lobby well beyond what the Court ruled. The Court ruled for Hobby Lobby in that case, because they found a win-win situation. They found the government had created this other programme and couldn’t explain why for-profit corporations couldn’t participate in that programme. So there was a way for the female employees, and female relatives of male employees, to get the contraception without it coming from . . . the Green family, in this case (20:00). I don’t think that that means the default position is that employers always win in these cases. But we certainly have people making that argument, and trying to espouse that as the true interpretation of Hobby Lobby, which we would both vehemently disagree with.

BM: So, I think you bring up so many interesting and important questions about what constitutes a corporation that’s able to claim an exemption: who gets to claim an exemption, whether it’s only limited to religions? So, for example, could you tell . . . ? Some of our audience might not be familiar with US case law, and how we treat these issues. Could someone who identifies as a humanist or an atheist – but sincerely held convictions that are as totalising as what we often think of as a religious world view – go before the court and claim an exemption from a neutrally applicable law, and say that it is grounded in a sincerely held belief, even if it’s not linked with a traditional religion? So I know that that’s been allowed in certain conscientious objection . . . for example in military service. Does it extend beyond that? Or could you talk about the conscientious objection cases that it does apply to?

JH: Well, in the conscientious objector cases the court looked at . . . again, went to the text of the statute. And they found that between various iterations that congress had passed, and had been enacted into law, Congress broadened the definition of who would be covered by religion. And so the court followed suit, and ensured that that protection was as broad as the language in the statue. And so these cases really depend on how we define words in statutes, and how we use them in context, and how we reference other statutes. So if Congress wants to pass a law with a very expansive definition of a religious person or organisation, there are many examples of that throughout the law that the courts have interpreted. The question is whether they could write something more narrow, that would exclude some groups. And that would be more difficult to do, especially given the other statues that seem to be on this path of towards increasing the number of people who can claim the ability to live out their beliefs, that that might be all-encompassing and similar to a religious belief or practice.

MG: Yes. In the conscientious objector cases, the idea was that it would apply to people who maybe didn’t say that they were religious but had a belief that was held as strongly and similarly to a religious belief. And some of the statutory things . . . I don’t know that there’s ever been a claim under RFRA where someone has tried to make that claim. I do think it’s interesting, though, that under RFRA and under some of the other laws, you can’t really – and I think this is right – you can’t really question whether or not it’s a real religious belief, right? So you can’t say – and again I use Lutheran, because it’s me, and so I’m not offending anyone – but you can’t say, “Maggie, what’s your religious belief? I’m now going to look and see whether your pastor says that your belief . . . .” And sort-of go up the chain of the Lutheran church, and the Lutheran doctrine and see if it all matches up. I could say, “I’m Lutheran”, and I could also say that my views completely are different than the traditional Lutheran church beliefs. Which is the way that it should be. The danger of course, though, is that now everyone who has any religious belief can come and say, “I’m going to challenge the law because, as applied to me, you know, it’s a substantial burden on my religion.” And I don’t often say that I agree with Justice Scalia. But Justice Scalia, many years ago, decided the Smith case – Employment Division versus Smith – and he was talking about religious exemptions, and the free exercise clause, and whether or not this test that is now RFRA is the right test. And he spoke about how there’d be anarchy because every person would be a law amongst themselves. Because they could sort-of say, “Whatever fits with my religion, now I want to get a religious exemption.” And, of course, it’s not like . . . RFRA isn’t a trump card. There is the other side balancing: is there a compelling interest, and is it narrowly tailored? But that is getting harder for the government to meet. And so, yes. That creates, again, this quandary that if we are saying that every person’s religious beliefs should be recognised under RFRA – if they say it’s a burden, and it’s a substantial burden and the court now sort-of agrees with them – what does this mean? Does it mean that we are getting ourselves into this . . . ? Well, we’re not quite there. I don’t mean to be too alarmist (25:00). But we’re moving down the line that Scalia is talking about.

JH: Well, and one of the things I always like to point out when I teach RFRA to college groups who come to visit BJC, is RFRA is, if you look at the statutory language, protects against a substantial burden on an exercise of religion. And I think sometimes exercise of religion has gotten lost. And people try to substitute religious belief with that. There is a big difference between exercising belief – and Congress, when the law was enacted, they chose exercise – and so that has to have some kind of meaning. And so I look forward to the day when the courts are looking at all parts of RFRA. And sometimes, you know, the religious objector needs to win. And then sometimes the religious burden just cannot be accommodated. But it should be a situation where we all have the ability to be able to come into court and be able to make our claim. But we have to look at all parts of the test, otherwise the test is not working in the balanced way that it was intended.

BM: Right. And that actually brings up a case that is not currently before the court, although certainly has been filed. So this is the Ricks versus Idaho Board of Contractors case in which someone says that for reasons of sincerely held religious belief, he doesn’t want to have to offer a social security number to the state in order to have a contract. So here we have someone who . . . it’s not a commonly-held religious belief, but it’s sincerely held by this particular person. So what, as we try to balance truly recognising that religious belief might be sincerely held even if it’s not commonly held, and recognising that the state has a compelling interest sometimes in asking people to do things that they don’t want to do, for reasons of sincerely held religious belief . . . how do we balance those two things? You mentioned the difference between belief and exercise. I know when I’m in spaces with a lot of, especially, conservative religious folks – and progressive – they say that a belief without the option to exercise that belief is not really a strong protection. That if you can’t act on a thing that you feel most strongly about, then that is that is certainly a substantial burden at some point. So if you’re a judge sitting before some of these decisions, trying to decide whether to force people to do what it is that they didn’t want to do, and saying, at the same time, “Here’s someone who believes in religious freedom”, how do you reconcile those two things in your head, or for the public? Do we just recognise that sometimes we abridge religious freedom, or that certain things we don’t necessarily consider as religious as others? So, for example, if someone says that they do . . . something that we think of as a core practice, something they do in a church or a mosque or a synagogue, I think it would be very difficult for a court to say that that wasn’t allowed. It would take a lot for them to say, “We are going to stop you doing that activity.” But as things leave the four walls of a house of worship, we often think that whatever activity is being conducted is not as religious as the activity in the church. So would you just walk us through, from a religious studies angle, how we think about religion and law, and where it becomes less and less important for the government to safeguard that particular act?

MG: So one of the things you were asking in that is, “If you were a judge, where would you start?” I would start with one of the questions that should be asked in the Establishment Clause, which is: are we giving a religious accommodation that is harming others? And I think there’s a basic civics class thing that we learn as kids which is: your rights end where my rights begin. And so at Americans United we always say, “Is this going to cause harm to other people?” And so I think that, right out of the gate, is one of the first questions you ask. So in the case about the social security number, is it causing harm to other people? I don’t know that case that well, but maybe it is, maybe it isn’t. In cases where it’s an issue of “Can I get out of a non-discrimination law?” So, I live in a state that says I can’t discriminate against LGBT employees and I say that that violates my religious beliefs. The question should be, if I give you that accommodation, what happens to someone else? And the answer is, they are discriminated against. And that is not . . . to me that is the end of the question, right? There is a dignity harm. There is a loss of a job (30:00). There is a loss of a promotion. And therefore you don’t get your religious exemption, because you are causing serious impacts on other people. That’s where I start.

JH: Yes. And my answer would be very similar. But I would also look at the harm to others outside of the religious community. So we all . . . as a Baptist I go to my church and there are certain expectations on me, as a member, that visitors . . . if Maggie were to visit my church with me on Sunday, she would not have those same expectations put upon her. And so if the exemption is primarily going to affect people who have voluntarily chosen to be part of that religious community, then I think there should be a thumb on the scale towards granting that exemption. But if the exemption is largely going to impact those outside of the religious community – those who have not voluntarily come to this belief or practice – then the government should look seriously at: how do we minimise this harm outside of the religious community? And if it cannot be minimised, then maybe it cannot be granted. But we have a long history of religious exemptions. So I think that’s something we always have to keep in mind. There are even people who say that our first exemption is in the constitution itself, when the president is allowed to swear or affirm an oath of office. Because, in our colonial days, our Quaker brothers and sisters could not swear an oath and so, in order to permit them to be able to run for the highest office in the land, an exemption was made so that the oath could be affirmed instead of sworn. And that obviously impacts no-one. It has no negative harm for someone else. So that’s an easy one to grant. The much more difficult cases are when the primary impacts of that exemption would be on someone outside of the religious community.

MG: Another line, I think, that becomes a clear line is when the religious organisation gets money. And this kind-of takes us, in a way, back to Espinoza – where they’re asking for government funds. To me, once . . . . The idea of religious exemptions for religious organisations, and the government staying out, is for them to have autonomy for them to make their own rules, you know. They’re kept separate. But once you take government funds voluntarily, to perform a programme, to get some form of a benefit to me, the government, now . . . you’ve sort-of lost your “I want to remain autonomous” argument. And now the government, I think, has the right to go in and say, “You have to go by government rules.” So if you take a voucher, a private school voucher in Montana or any other place, then you should have to adhere to the same rules as everyone else. You should not still get the religious exemption that you’re getting. You’re getting the religious exemption because you are religious and you want to maintain your autonomy. But if you get government funds you’ve already sort-of given up your autonomy, and you don’t get to get special exemptions at the same time that you get government money. This has been an issue since George W Bush’s years, about employment discrimination, where they put in place rules that say you can get government contracts and government grants so you’re taking money from the government to perform a social service, and then you are still allowed to have your own religious hiring litmus test. To me that is wrong. It is one thing for the Lutheran Church to be able to say “We hire Lutherans for certain positions” – obviously we hire a Lutheran pastor to be our pastor. It is another thing to say, “We want to get a government contract to provide services for the public and we still get to place our religious litmus test.” To me that’s a line.

BM: I think that’s a really helpful set of distinctions of how people can think about these issues. I’m curious, could you give us just some easy examples where you maybe both agree, “This is an obvious case where an exemption should be granted”? I think it’s helpful. Often we spend a lot of time talking about the limits of exemptions, and where they start perhaps creating dignitary harm or leading to improper use of government funds. What are some obvious examples of exemptions, and why are they not leading to this kind-of slippery slope of “everyone has their own law that applies to them”?

MG: I’m going to go first because you’re probably broader in your exemptions than I am (Laughs). So, we filed a brief on behalf of a Muslim man who was incarcerated. He wanted to wear a beard in accordance with his religious faith. It was a short beard and the prison system said “No, he can’t”, for two reasons. We have a compelling interest because, one, he could have his photo taken without the beard and then have his photo taken with his – it’s like a quarter-inch beard or something – and we’ll never know who he is. And the court was like, “Yeah, that’s not really that compelling.” (35:00) And another one was, he could hide weapons in there. Which . . . probably not many weapons are being hidden in this quarter-inch beard. But we argued that, yes, he has a sincere religious belief. The government’s compelling interest is really not believable. He is not hurting anybody. So that is something where we came down on his side. We came down on the side of a student in a school where there was a no hat rule, and they want to wear a yarmulke. That is not hurting anybody, and clearly should be provided. Some cases where you want a day off to celebrate your religious Sabbath etc., etc. Those are some of the ones that are very clear for us.

JH: Yes, another big case which was around the time of the case of the prisoner, was about an applicant at Abercrombie and Fitch stores And she wanted to wear her hijab as a part of her religious practice. And Abercrombie didn’t want to hire her on that basis. And so that was a case that unified the religious liberty community. Every religious or religious liberty group that filed a brief in that case, filed on her side and said “No. An applicant should be able to wear the religious garb that does not interfere with any safety concerns that might have been present in that employment role.” And so there’s a number of cases that unify us. Of course the ones that get the most attention are the ones that divide us.

BM: So, with the time that we have left, going back to Espinoza, where do we stand? I have two questions: one is to wrap up on Espinoza, and think about where this conversation leads us with the tax credits and what the different things that we’ve talked about – whether it’s funding or dignitary harm, or leading to an excessive entanglement between a religious institution and secular institution. So, trying to bring together some of the different tests or legal ideas that we’ve talked about, and how it applies to this case. And then my second question, which is somewhat related, is, as lawyers, as people in the litigation arena thinking about our audience, what are ways that Religious Studies scholars can communicate their research and findings to the legal field so that they can better inform how we think about religious liberty cases – what constitutes a religion, what is religion, what is religious freedom – and how we think about the separation of church and state? You can tackle one, or both, or neither of those!

MG: I’m going to start with your second question about how religious scholars could be helpful in cases like this. I feel like I sound so sceptical, today. But I’m sort-of looking at free exercise cases and Establishment Clause cases. Oftentimes I think that if you are of a minority faith, and it is something that is not well known to the justices, or not well known to the public, you will lose your case, right? Because you know if it’s about communion wine, people understand about what that means. Or if it’s about kosher food people sort-of understand, in this culture, what that means and the justices would understand that. But if it’s a Native American religion, or if it is something about observing as a Muslim, sometimes those things sound different. And when they sound different they don’t . . . it doesn’t click, sometimes, that that could be a substantial burden on your religion. And so I think some religious education about some of the meaning that these practices have to other religions could be helpful, pretty much to everybody.

JH: Yes. I would certainly agree with that point. And I love reading our Baptist historians. And we have used them in our briefs on a number of occasions. So any ability to continue the scholarly work and research – but figure out ways that are more contextual that we could cite, or that we could use in telling a story – would certainly be helpful. Back to the wrapping up of Espinoza: I do think, as religious organisations are asking for more and more to be treated like everyone else, that we need to be careful what we ask for. We are given a lot of exemptions and treated differently in a lot of ways that benefit us. And those exemptions and special treatments become harder to defend if we’re funded just like everyone else (40:00). And so I would certainly want to remind religious Listeners whether they be scholars or just people who attend church, that whenever the institutions of religion and government have mixed, history has shown us that religion has always, always lost. So if we want to maintain our uniqueness and our special legal characteristics, then we’re going to have to fight to maintain our separateness. Which is why separation of church and state has always been a move led by religious groups, here in the US, from our colonial days till now. It’s not a secular versus a religious fight, it’s a religious versus religious fight.

BM: Great. Well, I think that’s a great place to leave things. I want to thank you both so much for coming on. It’s been a really fascinating and generative discussion. I hope our scholars and other audience members who are listening – whether you are in academia, outside academia, in a religious community, not in a religious community – that this has helped open up some of our thinking about what it means to protect religious freedom, to think about the separation of church and state – and the complicated questions that it brings up, when we say that we support or don’t support religious freedom. So thank you both so much for being here today, and I look forward to having discussions with you in the future.

JH: Excellent.

MG: Thanks for having us.

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How Religious Freedom Makes Religion

Religious freedom has emerged in recent years as a pivotal topic for the study of religion. It is also the subject of heated debates within many countries and among human rights advocates globally, where competing groups advance radically different ideas about how religious freedom operates and what it protects. While for marginalized and minority communities, this freedom can provide important avenues of appeal, at the same time, governing regimes of religious freedom have most often served the interests of those in power and opened up new channels of coercion by the state.

This conversation with Tisa Wenger, author of Religious Freedom: The Contested History of an American Ideal, starts with the question of how religious freedom talk functions to shape the category of religion and to transform what counts as religious in the modern world. Using Wenger’s ethnographic and historical research on the Pueblo Indians, we discuss how local, national, and international regimes of religious freedom have shaped (or even produced) new religious formations, ways of being religious, norms of good vs. bad religion, or distinctions between the religious and the secular. In short, how has religious freedom (re)produced religion and its others in the modern world?

You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us. And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, sardines, popcorn, and more.


 

How Religious Freedom Makes Religion

Podcast with Tisa Wenger (30 September 2019).

Interviewed by David G. Robertson

Transcribed by Helen Bradstock.

Audio transcript available at:

https://www.religiousstudiesproject.com/podcast/how-religious-freedom-makes-religion/

David Robertson (DR): I’m joined today by Tisa Wenger. We’re here in Hanover at the DVRV conference. However, we’re not going to be talking about the German context. We’re going to be discussing how religious freedom makes religion. Tisa teaches in the Divinity School at Yale, including Religious Studies and American Studies, and is the author of the recent book, Religious Freedom: The Contested History of an American Ideal. Welcome to the Religious Studies Project, first and foremost!

Tisa Wenger (TW): Thank you so much! It’s good to be with you.

DR: Let’s put the book in a little bit of context, before we get into a couple of case studies. Tell us how you started working on it. How did your early studies lead you to this subject?

TW: Yes. Well I’ll try to keep it relatively brief, instead of giving a full intellectual autobiography! But my first book, which was based on my dissertation, was called We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom. I started that book, not by thinking about religious freedom, but by thinking about race, American colonialism and category of religion. And I wanted to make an intervention into the kind-of Religious Studies conversation about to what extent is the category of religion a colonial imposition in various contexts. And I wanted to talk about that in relation to Native Americans, and for a variety of reasons ended up looking at the American south west and the Pueblo Indians in Mexico. And I argued, in that book, that Pueblo Indians only began really to contextualise their traditions as religion in the 1920s in order to make the argument for religious freedom. So that’s how I got to religious freedom – kind-of-like through the back door, so to speak. And when I finished that book I wanted to put a similar set of questions on a much broader historical stage. So I was asking, “Who’s invoking the idea of religious freedom and what kinds of cultural and political work does it do?” and, in particular, in kind-of imperial contexts, colonial contexts, and in relation to racial formation in the United States. So the set of arguments that you didn’t hear me talk about today had to do with race, and the way race is shaped in America is kind-of co-constituted with religion. And so I have argued in various other examples about how race and religion are co-constituted. But I was interested initially in this question of how religious freedom shapes or produces religion; when different sort-of social and cultural formations come to be conceptualised as religion, and how the category of religion is formed in that process. And so part of what I’m arguing in the book is that religious freedom disputes do important political and cultural work in that way, in shaping what is religion.

DR: Yeah. Right. And that, for me, is a very interesting aspect of your work. We’re very familiar with the kind-of human rights approach to this issue of, “How do we represent religions in the law?” and “How do we deal with religious freedom?” and these kinds of ideas. All of which, of course, sort-of assume this thing which needs to be represented. Whereas your argument is more subtle. So, if I’m understanding, it’s essentially that the category of religion is almost created in these legal negotiations about how we represent and recognise religions in the law – especially in a sort-of colonial context. Is that . . . have I got that correct?

TW: Yes that’s exactly right. But I would say that in most cases, it has not been created out of nothing, right?

DR: Of course, yeah.

TW: (Laughs). In most religious freedom controversies that we see . . . of course, the category of religion already was present and being used by people, but it is recreated and reshaped all the time. And in some cases, I think particularly in colonial contexts, you can see where local people – colonised people – start to use it for themselves for the first time, or pretty much for the first time, right? Because particularly the thing about US imperialism . . . . And religious freedom is such an important concept for Americans, generally – but for colonial officials in particular, who saw themselves as bringing freedom to the people they colonise, right?

DR: Right.

TW: And in some cases, bringing religious freedom was particularly important to them. So I’m interested in how, then, religious freedom served as a tool for kind-of colonial administration. But I’m also interested, then, in how colonised people take that principle and use it to kind-of speak back to empires.

DR: Right. Which is one of the most difficult aspects of post-colonial study of religion, I think, for people to get their heads around. It’s that it’s a process. There’s a two-way process. It’s not simply the baddies making the goodies behave in a certain way. But the category is reshaped, reconstituted and sustained in that dialogue where it is imposed in certain legal contexts. But then it’s also used by the people being colonised.

TW: Yes

DR: As an act of legitimatisation, yes?

TW: Yes. Exactly. So in the Native American case . . . and I can point to lots of specific examples, you know? In my work on the Pueblo Indians, and the piece of my book that you heard me present on today about Ojibwe Indians in Minnesota, in both cases you see US government officials with the Bureau of Indian Affairs (BIA) delegitimising indigenous traditions by categorising them as superstitious, heathenish, pagan, right? And indigenous people who really in their own languages and ways of structuring . . . . They had their own ways of structuring their societies, but those ways of structuring their societies didn’t really include anything equivalent to the category of religion as Americans understood it at the time. But they start to conceive of those traditions as religion in order to argue back against the categorisation of themselves as heathen savage, pagan etc., right? So this is why I title my first book We Have a Religion. This was a quote from a Pueblo Indian petition to the superintendent of Indian Affairs, saying “We also have a religion,” You know? “And you can’t ban it, because of the First amendment to the US Constitution.” Right?

DR: Yes. The clearest example that I’m aware of – it’s quite a well-known case, you know – is the way that Indian independence and Hinduism are kind-of coeval. So Hinduism is an administrative category, essentially by the British Empire, which then becomes one of the central motifs in the national identity of India leading directly into the Indian independence movement, and, you know, One Nation Indian political power today.

TW: Yes, that’s exactly right. And the sort-of construction of Hinduism as a “world religion” is happening in conjunction with that colonial history. Both by Indian intellectuals and by British . . .

DR: Absolutely.

TW: . . . for somewhat different ends. But it serves both of their interests to construct Hinduism as a world religion.

DR: Absolutely, yes.

TW: But native indigenous traditions, for Native Americans and elsewhere around the world, never got conceptualised or moved to that level of world religion, which is a different thing, as we know from Tomoko Masuzawa’s work and others.

DR: Absolutely. Let’s dig into one of those examples, then. The Pueblo Indians example is really fascinating. So perhaps you could take the Listeners through some of the details of that?

TW: Sure, so the Pueblo Indians are really a group of culturally related peoples in New Mexico, sort of related to the Hopi in Arizona. Related because . . . well . . . . Now I’m going to ramble! But they’re really four separate language groups that lived close by each other for several centuries and so came to share a lot of cultural characteristics. But they were colonised by Spain early on, as part of the kind-of northern expansion of New Spain up into what is now the south-western United States. And that’s hugely influential in shaping who the Pueblo Indians were by the time that the United States arrived in the region, after the Spanish American War in 1848. And most of the Pueblo communities – although not all of them – became Catholic under Spanish rule, and were pretty bilingual in Spanish and indigenous Tewa and Tiwa languages. And they, in the kind-of Spanish uses of religion, would conceive as Catholicism as their religion. So it’s not that they weren’t familiar with the category of religion. But under Spanish law, let’s just say, and in the kind-of Mexican New Spain, and then independent Mexico, there was no legal advantage because there was no religious freedom guaranteed to conceptualising indigenous practices as religion. So they had come to a kind-of accommodation with the Franciscan priests, who were mostly the clergy in the churches. And the Pueblos came to be named for Catholic saints and had feast days for the patron saint of each Pueblo, where they would practice traditional Pueblo dances as well as have a Catholic mass and a procession through the town. But they had kind-of come to an accommodation with the Catholic priests, the Franciscan priests, where they would . . . They talked about Pueblo kiva ceremonies and Pueblo ways as costumbre: custom, right?

DR: Yes.

TW: And so that really didn’t change under American rule until the 1920s, when there’s a new Commissioner of Indian Affairs, Charles Burke, who puts out this kind-of dance policy in order to enforce older regulations against Indian dances and those that . . . the one from the 1880s that I was actually referring to in my talk today. He, Charles Burke in the 1920s, tries to reinforce those relations.

DR: So, maybe just in a sentence or two, tell us what they are, because the Listener won’t have . . . .

TW: Right, so there was . . . and these are not laws passed by Congress, right? They’re more bureaucratic regulations within the Bureau of Indian Affairs, that’s nested under the Department of the Interior. And the Commissioner of Indian Affairs is in charge of the Bureau of Indian Affairs. And he had immense sort-of executive power to regulate. And so this court of Indian offences was created by the Commissioner of Indian Affairs as a way to . . . . I’m sorry, I’m not being very brief here! But it’s relevant . . .

DR: No, this is good!

TW: as a way to, again . . . it’s a kind-of tutelary regime: a way to instruct Indians – and this is done in a very patronising way, so I’m kind-of echoing the patronising language that was used – to instruct Indians in civilisation and in the law. So they would . . . the agents would appoint a kind-of more – quote unquote – “progressive” Indian, to be the judge of the Court of Indian Affairs. But part of what the Court of . . . . There’re also kind-of regulations or there were a list of quote “Indian offences“. And nowhere in the documents extant from the time or in the regulations that were written up by the commissioner, was this referred to as “religion”. But it later came to be called the Religious Crimes Code. But the Indian offences that were listed in this code were “heathenish rites”, “the arts of the conjurer”, “the medicine man” etc., etc., right? And so native people could be, and were, fined and imprisoned for practising the arts of the conjurer, or participating in certain kinds of dances that were specified to be banned. But that had not . . . For various reasons the US control over Pueblo Indians was not nearly so strong in that period in the late 19th century. And it hadn’t really been enforced against the Pueblo Indians ever. And I don’t need to take the time to go into the reasons for that. But in the 1920s, actually – sparked in part by an exposé of Pueblo ceremonies, in which those ceremonies were depicted as sexually lascivious and immoral by missionaries and missionary-minded government agents – who were really, I think it’s safe to say, completely misinterpreting and misreading those ceremonies . . . .

DR: That’s a common way of representing any barbarous religion anyway, isn’t it?

TW: Correct.

DR: It’s a common language.

TW: Correct. So Charles Burke’s new regulations on dances, that were really just trying to re-inforce some of the earlier regulations form the 1880s, were sparked by a controversy of Pueblo Indian dances. So they were very much at the focus of the controversy that ensued. In the meantime, there were kind-of a group of Boasian anthropologists and sort-of modernist artists and writers who had settled in New Mexico, it was in Santa Fe, and who were starting to really romanticise the Pueblos as “ideal primitives” – quote unquote – right? And so some of those people also leapt to the defence of the Pueblos. And the Pueblo leaders themselves resisted the government suppression by saying, you know, “You can’t do this. Our traditions are religion.” But their re-categorising their traditions as religion was aided by the anthropologists and artists who were also starting to do the same thing, right? In a kind of celebration-of-primitive-religion way. So that’s what happened. Then it was a pretty big public controversy, I mean with articles in lots of national magazines and newspapers and such about the Pueblos. And one of the people who was centrally involved was John Collier who at the time had just become the head of a new reform association called the American Indian Defence Association. And he was becoming one of the biggest gadflies against BIA assimilationist policies. And then later under Franklin Delano Roosevelt’ with the New Deal, Collier was appointed as the commissioner of Indian Affairs – which was a huge overturn. And he reversed some of these policies outlawing Native American dances, and he did so on religious freedom grounds. That reform had its own limitations, of course. And most BIA agents, even after that point in the mid-1930s, continued to work closely with Christian missionaries. And even when they formally recognised the right of Native Americans to religious freedom, nonetheless still conceptualised religion with such a Christian model that they often ruled indigenous practices outside of what counted as religion, right? So what was considered religion was always being negotiated and contested on different Indian reservations between native people and government agents.

DR: And so was there also the kind-of opposite side of that? Does the legislation and the control then shape the way that the Indians are practising? Did they begin to think differently about their practices and maybe even emphasise different bits more, and focus on things differently as a result?

TW: Yes absolutely. So when I finished the book on the Pueblos . . . this was the first piece that I did for my new big sort-of broad-scope religious freedom book. My first transitional step I took was to say, “Well I’ve done all of this in-depth work on the Pueblos in New Mexico. Now I wonder how this happened, or can I tell a similar kinds of stories about other Native Americans elsewhere in the United States?” right? And “When did native people start to use religious freedom arguments?” and “How did that shift things for them?” I didn’t get to that part of . . . . I did make that kind of argument in relation to the Pueblos, as well, and talk about how reconceptualising their traditions as religion created new conflicts within Pueblo communities. But I want to talk now about the newer research that appeared in the second book, in the religious freedom book, that resulted from me asking, “Well, what did this look like more broadly?” And initially I was actually thinking, “Well, probably because there was such a concerted government attempt at suppressing these traditions and nobody was thinking of them as religion, that probably religious freedom wasn’t a pertinent category until the twentieth century.” But I found that not to be the case. I found that actually the more I looked, the more I found Native Americans from the beginning of the nineteenth-century really, in some cases, using religious freedom talk. And I would say, broadly speaking, there are at least two different types of ways that that was applied. So one, in relation to the kind-of stages of colonial history, perhaps – in early stages of colonial contact, before native nations were conquered, when you have Christian missionaries coming, where the native nations are not under US control – you often see native people saying something like “We’re not interested in your religion. We have our own religion.” And sometimes that directly becomes language about religious freedom and sometimes it becomes directly language about religious freedom that is also about protecting indigenous sovereignty, in a kind-of collective way: “Our people have our own ways. And you can’t take our land. You can’t take our …” You know? And religious freedom was part of that. But it’s not a religious freedom that is appealing to the US Constitution, because they’re not under the US Constitution. They don’t see themselves as being governed by the United States.

DR: Yes. And there’s maybe less of a . . . It’s maybe not to do with freedom of religion and the role of the secular. They’re more thinking in terms of religion as customs and that kind of idea.

TW: Yes. They using religion-talk, but in a way where it’s very integrated. But then, after Native Americans are conquered essentially, right – and that happens at different times in different parts of the country and for different native nations – but by the late nineteenth century, by the 1880s, really overwhelmingly native Americans have been conquered, and they have been restricted to reservations, and there are now new policies that are being implemented. And the Code of Indian offences that I was describing earlier is part of that period of a kind-of newly heightened effort at administrative control. And that’s when, immediately in that period, you start to see Native Americans on reservations resisting the suppression of indigenous practices. And sometimes native people refer to their “doings”: ceremonies, dances, all kinds of practices – you know, medicines, healing practices – they start to refer to some of them as religion specifically in order to make religious freedom arguments. And that started to happen in the 1880s. It accelerated with the Peyote movement, and the suppression of the Peyote movement. And I trace that history in the book. But you see . . . . And actually, the Peyote movement is a really interesting case with regard to the question you were asking about how that shifts indigenous traditions. Because, I mean, I don’t think the government suppression and the law is the only reason that Peyotists, and people in that tradition, started to talk about it in the language of religion. There were other reasons as well, but this was certainly one of them. But what is very clear is that the Peyote leaders and practitioners . . . structurally, the movement shifts towards a more, what we might call a kind-of Protestant – certainly a Christian – model for what counts as religion, in order to make religious freedom arguments in the courts, and in Congressional hearings, and before state legislators. And that happened in various places. But, you know, there’s the incorporation of the Native American church, right, that happened . . . which there was an anthropologist, James Mooney, who helped with that process. And the Native American church, you know . . . . Again Peyote ceremonies were, for various reasons, borrowing from Christianity. And some of the Peyote movements began to see themselves as Christian. But the fact that being Christian helped with a religious freedom argument meant that those groups had a boost, right? (Laughs). So there’s a kind-of incomplete Christianisation of the Peyote movement and the Native American Church that isn’t entirely caused by the need to resist government suppression and make religious freedom arguments, but is certainly encouraged and accelerated by it. And so, you know, Peyote is called “the sacrament”. Again and again, you see Indians trying to argue, you know, against legislation and suppression. And that is also in the climate of a prohibitionist period, when there’s a huge campaign against drugs and alcohol – and particularly alcohol, right? So there were crusaders who were employed by the Bureau of Indian Affairs to stamp out the alcohol trade among Indians. And the Peyote became kind-of classified as a dangerous drug, alongside alcohol

DR: Right, yes.

TW: So the Bureau of Indian Affairs talked about Peyote and the Peyote as a cloak for drug dealers. They just . . .

DR: Right. Similar to the way that cannabis became . . . ?

TW: Yes. “They’re pretending to be religious in order to kind-of pedal drugs”, right? And so, in order to combat that kind of suppression and denigration, Peyote leaders would emphasise the kind-of positive moral effects of Peyote practice and Peyote worship, and talk about the sacrament, and talk about the church. So that was very much a necessary strategy for them. And I don’t see it . . . again, I don’t see it only as a strategy, but it was certainly accelerated by that. Yes.

DR: Yes, and on the RSP we’ve talked a few times – we’ve been talking about it over the last week here, as well – that all of these categories – you know, religion, race, the secular, human rights – they’re all part of an interlocking system. So it’s not just the one thing that affects the way that religion is constructed. But it’s part of a larger system in which those are the building blocks we’re working with.

TW: Right. Yes. So you reminded me, in saying that, of the point I was making in the talk I gave earlier today: about how religious/secular distinctions are even produced in some Native American societies in this process. Because what I found was – this was the part I didn’t quite get to in my earlier answer – but what I found was that in many native communities while religious freedom arguments appeared quite early, and many native leaders were making religious freedom arguments, sometimes kind-of strategically, tactically, that wasn’t the most effective way to convince a particular official to allow them to hold dances. Of course, sometimes dances went on, regardless of what the officials said, out of their view. But many Native Americans on many reservations, you’d see dances being held on the Fourth of July, on various kinds of national holidays and Christian holidays – you know, Christmas and Thanksgiving, but especially the Fourth of July – and native people and returned veterans especially after the First World War saying, “We fought for our freedom and we have the right to celebrate our freedom.” And, plus, “These are just social dances, and white communities hold dances too, to celebrate the 4th of July – so why can’t we?” And they, in those cases, would very much downplay any kind of sacred ceremonial. They didn’t conceptualise those traditions as religious for the purposes of these arguments. And so you see, I think, a kind-of differentiation between certain dance or ceremonial traditions that became defended and conceptualised as religion, and came to take on the characteristics associated with religion – which is really modelled after Christianity in the United States – versus those kind-of dance or ceremonial complexes that were defended in different ways and so were not conceptualised as religion. And so there’s a kind of religious/secular distinction that happens where some dances are secularised. But the point I want to make is even beyond that, that the very distinction between a religious dance and a secular dance is emerging in that process.

DR: Right. As a last question, then: what do you think . . . where are we, then, with the religious/ secular distinction in law today? Do you think this is something that we should be seeking to challenge? Or do you think that there is still some value in a religious freedom law?

TW: That’s a really big and hard question for me! (Laughs).

DR: I know it’s something you’re thinking through just now, so maybe it can be just initial . . . .

TW: It is. And I mean I am more comfortable trying to observe and map how it’s happening. Seeing the kind of work that religious freedom is doing. And I think in the contemporary United States certainly religious freedom disputes help shape what people think of as religious and what they don’t think of, you know. And why certain things, again and again, get sort-of coded as a religious issue, as a religious freedom issue, is complex and puzzling. But, you know, it should . . . I’m in two minds about the continued utility of religious freedom. And I have always come down on the side that . . . as kind-of muddled and complicated as its history is, that it’s a tool that has nonetheless been useful to lots of minority groups. And that we can’t just reinvent our world and our categories ex nihilo, right? We don’t have that kind of power as scholars. So is it better to try to eliminate religious freedom law? I mean, I don’t really think so. I might change my mind about this. You know. I think that while seeing how historically constantly negotiated it is – what gets included within the scope of religious freedom and how that shapes what religion even is in our society – that we’re better off pushing for more inclusive, but sometimes also more limited views of religious freedom. In the sense that I don’t think religious freedom should kind-of trump every other value or principle of equality and justice that we have. In the history I trace, I think you can see how that tendency has been a problem and hence served . . . has been weaponised over and over again. And I think it’s still weaponised today. So I think we’re better off trying to kind-of reformulate and reclaim religious freedom. And I have a colleague and friend, Michael McNally who teaches at Carleton College and he has a new book coming out, on Native American religious freedom, which is really grounded in contemporary ethnographic research with . . . . Well, he’s worked with and learned from Native American activists and lawyers, and organisations advocating for religious freedom now. And he says that they’re very . . . these contemporary native leaders are very much aware of sort-of limits and pitfalls of religious freedom. But they nevertheless find it to be a useful tool alongside others. Even though it has failed repeatedly in the courts for Native Americans, contemporary activists would not want it to be gone.

DR: Right, yeah.

TW: Because they see it as way that they can . . . because religious freedom does have such cultural power in the United States that it can be a way to give a certain amount of moral authority to their claims. I mean that’s one of the kinds of arguments that he makes, and I find that very convincing. And so I think that for scholars who see religion as a constructed category and all of that – yes, absolutely. But who are we to say that activists shouldn’t have that tool, right?

DR: Absolutely. It’s been a really interesting conversation. There are a number of big questions that we’re not going to get time for today – so maybe we could have you back one day in the future to go more into the racial stuff,, for instance, which we didn’t really get too much in. But for now, Tisa Wenger, I want to say thank you for taking part in the Religious Studies Project.

TW: Absolutely. Thanks for having me! And I hope to be back, because, yes – there’s so much more to talk about!

DR: Excellent! Thank you.

TW: Thanks very much.

 

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When Islam Is Not a Religion

Asma Uddin is the author of When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom. In this book, Uddin examines an alarming trend to redefine Islam as a political ideology, not a religion. In our conversation, we track the history of this movement to redefine Islam and its implications for the rights of Muslims. We discuss the widespread presumption among American progressives that courts tend to protect religious freedom for Christians, but not for Muslims, and we examine particular stories that support and problematize that narrative. In particular, Uddin provides vivid examples of how American courts have reacted to arguments that Islam is not a religion. Uddin explains how and why Muslims and their allies disagree about whether religious freedom laws offer (or should offer) necessary or sufficient legal frameworks for protecting the rights of religious minorities in the United States.

In the latter part of the conversation, we discuss Uddin’s approach to writing the book. She describes how she balanced the desires to better equip people who already acknowledge that Islam is a religion and, on the other hand, to convince those who view Islam only as a political ideology to change their minds.

You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us. And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, roses, llama figurines, and more.


A transcription of this interview is also available, and has been pasted below.


When Islam Is Not a Religion

Podcast with Asma Uddin (24 June 2019).

Interviewed by Benjamin Marcus.

Transcribed by Helen Bradstock.

Audio and transcript available at: Uddin_-_When_Islam_Is_Not_a_Religion_1.1

 

Benjamin Marcus (BM): Hello, Religious Studies Project Listeners! My name is Ben Marcus and I’m really pleased to be here today with Asma Uddin – Welcome, Asma! Asma Uddin is a fellow with the Initiative on Security and Religious Freedom at the UCLA Burkle Centre for International Relations. She’s also a Berkley Centre Research fellow and a senior scholar at the Religious Freedom Centre of the Freedom Forum Institute. Uddin previously served as council with Becket, a non-profit law firm specialising in US and international religious freedom cases, and was director of strategy for the Centre for Islam and Religious Freedom, a non-profit engaged in religious liberty in Muslim-majority and Muslim-minority contexts. She is widely published by law reviews, university presses and national and international newspapers. She is also an expert adviser on religious liberty to the Organisation for the Security and Cooperation in Europe and a term-member of the Council on Foreign Relations. In addition to her expertise on religious liberty, Uddin writes and speaks on gender in Islam and she is founding editor-in-chief of altmuslimah.com. She graduated from the University of Chicago Law School, where she was a staff editor at the University of Chicago Law Review. And we’re here with Asma today because she just wrote an excellent new book that I’ve had the chance to get a sneak preview of, which is titled When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom, out on July 6th, and available for pre-order now. So I’m excited to have Asma here today to talk about that book. And I want to start off with a broad question that really is the context for the book that you’re writing, which is: was there a specific moment, or experience, that alerted you to the fact that people are seriously arguing that Islam is not religion?

Asma Uddin (AU): There was. And thank you, Ben, for having me here. It was in 2010, I was still at the Becket fund, and I was working on a case in Murfreesboro Tennessee, involving the Islamic Centre, Murfreesboro, and its attempt to build a new facility. As is very common with Muslim communities across the US, the community in Murfreesboro had outgrown its base numerous times and was tired of moving from apartment, to garage, to storefront, and decided that it needed a permanent spot: something that was big, and could accommodate them and their growing congregation over the course of many years. And, given the existing relationships that the Muslims of Murfreesboro had with others in that community, they were totally caught by surprise when, in the course of their construction of this building, their construction site and much of the construction material was actually set on fire. And those flames – as they were eating up this site and these materials – those were really the opening scene of my book. Because it was in that moment where there were these very clear signs that there was going to be real tension. And chronologically speaking, the timing is important because this incident happened pretty much on the heels of the Park51 dispute that has sort-of erupted, and taken over both New York City and the national headlines dealing with the mosque project – or a project that was deemed to be a mosque. It was actually a cultural community centre in New York. And so the two incidences are linked, in terms of the substance and the timing. But the argument in Murfreesboro was clear that it had come out of the animosity against the Park51 building. In the Murfreesboro case, it was actually argued in court, over the course of the six-day hearing . . . which is a significant fact, because the judge didn’t stop the questioning as it went on! Typically, if a lawyer gets out of line the judge shuts it down, but in this case it was allowed to go forward. And in the course of that six-day hearing it was argued very explicitly . . . and there’s always been a long time when these arguments have implicitly been made that Islam is not a religion, but these words were actually stated in court. And the argument was, essentially, that all the different protections that houses of worship get under the law do not apply in that case because Islam is not a religion.

BM: And what are they arguing that Islam is? What are they saying? If it’s not a religion, what can it be?

AU: There tends to be a number of responses to that. But the most dominant response is that it is a political ideology. And, you know, furthermore a dangerous political ideology that is bent on taking over the United States; that is at odds with the US Constitution; and its ultimate goal is a subversion of that Constitution.

BM: And I assume . . . . Did the judge provide any good questions . . . that would try to undermine that argument? Or did the judge just let that go forward unchallenged?

AU: (5:00) I mean, it was a number of witnesses that were questioned with really outrageous questions, such as: “If a religion is founded by a Prophet that engaged in sexual relationships with underage girls, specifically a six year old, would you call that a religion?” I mean, these are like commissioners and various government officials, siting on the stand, being asked these kinds of questions.

BM: Wow! So what do you find most alarming about this move to redefine Islam as something other than a religion? What have been some of the tangible repercussions or consequences of this?

AU: Yes, I think the conversation on Islamophobia has been going pretty strong for a long time. A lot of scholars and activists have noticed this trend. And what I noticed when I set out to write this book was that the conversation was almost exclusively based on what the media and politicians are saying – which is very important, obviously, because of the impact that both of those players have on our society. But nobody was really looking at the effect of this rhetoric on constitutional rights. And to the extent that that sort-of bridge was being made to tangible results, it was almost always in the light of national security policy and questions of immigration and detention. But it was a little odd for me, actually, that Muslims as a religious community . . . that conversation wasn’t happening through a religious liberty lens – which I get into in the book, actually. To the extent that framing, in itself, is another way of essentially saying that “Islam is not a religion”. If you keep talking about it in some other terms and not as a religious liberty issue, you’re almost implying that religion isn’t the proper lens to be looking at this through. And so when I set out to write this book, I was really coming from my background as somebody who’s a lawyer and writer focussed on religious liberty in the US, and abroad. And I was wanting to change that conversation a little, and turn the focus a bit to the concrete effects on religious freedom – which is what I spend the entire book really looking at: the various ways that this “Islam is not a religion” argument comes up. Sometimes it’s very explicit. Sometimes it’s implicit but in all cases it’s very obvious. And I have several chapters, each dedicated to a different area of religious exercise, where this has come into play to diminish legal rights of American Muslims under the US Constitution.

BM: That’s so interesting. I wonder if you’ve seen any changes in the strategies of lawyers, or legal scholars, who are advocates for the Muslim community? Are they starting to add in legal language protecting the rights of Muslims that are not just based on the First Amendment but based on other laws or legal precedent in their court cases? Are they trying the Fourteenth Amendment, or other laws or statutes?

AU: Yeah, I mean I haven’t done a full survey of actual briefs filed. It’s more so: are briefs being filed at all? But I did see some legal literature – academic literature – where Muslims were arguing that Islam, and protections for Muslims, needs to be defended under the racial discrimination elements of the equal protection clause.

BM: Interesting.

AU: And in some cases the argument went so far as to say that it should be used instead of religious liberty arguments because it “more accurately captures what is going on”. And that was, again . . . I mean, this was something that I read very early on in my research, which again was very alarming for me because it wasn’t just that there was a failure to understand these issues, but it was an actual concerted effort to diminish the importance of that. So again, it’s a move within the community. It’s not just outsiders saying this. But now it’s like a move within the community being, like, “Yeah, I think a better way to think about what we’re going through is racial discrimination and let’s advocate for it that way.” And I think that that in itself opens . . . I think the racialisation of Muslims is a reality. I think that is a phenomenon. But when you begin to say that it is racial instead of . . . or that the racial element is more important than . . . you’re creating exactly the space that these other people want, to diminish the religious status of Islam. You’re giving them that opening. And that’s worrying.

BM: It’s fascinating that the discourse by those who are antagonistic towards, or attacking the rights of Muslims has actually changed, to a certain extent, the legal strategy of Muslims – or their allies in courts – to move from the religious liberty lens to the race-based discrimination lens. Or maybe a combination of those two things.

AU: Again, I haven’t . . . that was the advocacy that I saw in the academic literature (10:00). And in terms of the actual legal advocacy I think, for me, that’s less of a current problem in its explicit form. But I think this idea of Muslims as racial or ethnic minorities – or something akin to that – as opposed to a religious minority, is showing up just in the types of issues that are being litigated to begin with.

BM: Right.

AU: And so, coming from a background where I saw very sort-of expansive advocacy for religious liberty on behalf of conservative Christians, and Jews, and a wide array of other religious groups in the US, that expansiveness is very much missing in the Muslim legal advocacy space. It’s like even the NYPD surveillance case, it was just. . . . The argument there, in terms of proving animus, was almost entirely based on trying prove intentional discrimination. And I was like . . . I tried advising that group that you can actually prove discrimination without proving the exact very explicit intentional discrimination. There’s a wide array of ways to prove that there was systemic differential treatment in a very systemic way. It could be something that’s not at its face discriminatory but applied in a particular way . . .

BM: Right.

AU: And that resistance or, I guess, the narrow sort-of lens on what constitutes religious discrimination is not something that’s limited to Muslims, but I think it’s just part of the political alliance that they’ve been welcomed into, that wants to think of religious liberty in very limited terms. Whereas many people on the conservative side would argue for religious liberty much more broadly. And so I think all those are political elements mixed in as well.

BM: Yeah. That’s fascinating. And are you seeing it show up in the court? So could you tell us a little bit more about how your work ties into the argument that courts are biased against Muslims – that somehow religious freedom is for Christians only? This is something that’s come up with a few of the Supreme Court cases that were decided just in the last year – that religious freedom laws are only really being applied to protect Christians and not Muslims or other religious minorities. Could you speak a little bit more about that?

AU: Yeah. And so I think that more extreme version of that statement . . . this idea that you stated perfectly encapsulated that . . . . The Editorial board of the New York Times put out a piece about a month ago with the title “Is Religious Freedom for Christians Only?” And I think that that’s an extreme version of what I’m looking at. I don’t think that the bias is that extreme. And I definitely don’t think that’s the case with the US Supreme Court. Do I think that there is some problematic bias and some dynamics that need to be looked at, and questioned more closely? Yes. There is statistical evidence that a number of different researchers have put together, looking at religious liberty cases brought under a wide array of legal bases – whether it be the Free Exercise Clause, the Religious Freedom Restoration Act, and so on – and looking at these cases over the course of . . . one study, for instance, looked at it over the course of a decade and found that Muslims were the least likely to have their religious liberty claims resolved in their favour. I think the only one that was competitive with that was the black separatist sects. And so there’s a number of studies looking at and bringing this issue to the fore. And these researchers then also take the step of trying to figure out “Why?” Like, “What’s going on?” Because when it comes to legal cases and their resolution there can be a number of different things going on. It could be, for instance, that many Muslim claims are from Muslim prisoners, and prisoners generally are notorious for bringing frivolous claims – so is that what’s going on? Well, no. Because if it was frivolous it would have been dealt with much before the judge got to writing opinion and deciding a case. And so, for instance, a study that I discuss in some detail in the book is one by Gregory Sisk and Michael Heise and they go through a number of explanations of what they think, and explain why none of them are the right explanation. And they finally conclude that it’s bias. It’s a bias that a lot of judges probably don’t realise that they have. But they, as human beings living in a society saturated with this, are essentially being affected by what’s going on outside the courtroom in terms of how they’re dealing with some claim in front of them. And so there’s that empirical evidence. And then in terms of the type of thing that the New York Times was seizing on . . . I think it’s significant that it is the New York Times and its editorial board. Because it’s really reflecting, I think, what many Americans are feeling in the light of more recent decisions. I think that contrast that we saw this last summer between the Supreme Court’s (15:00) . . . the way it dealt with animus – religious animus or anti-religious animus – in the Masterpiece case. And there was a lot made of what the commissioners and the Colorado Human Rights Commission had said about Jack Phillips’ Christian beliefs, or religious beliefs specifically. And that was enough to, essentially, hold in favour of the baker. And then, three weeks later, you have the Travel Ban case where it’s just way more evidence of animus and it’s like the President of the United States who’s engaging in this. And it was just sort-of deemed an issue, by the majority, that wasn’t relevant. And there are all kinds of other complicated factors here. It’s not just a state commissioner it’s the President. The President comes with all kinds of special privileges. But many Americans. . . . And it’s also the fact that the dissent in that case disagreed and said that, “Well, I don’t think that that’s the way law should be interpreted in that particular case.” And so there’s that plausible legal argument for why animus should have played a bigger role. But then that contrast really, I think, left a lot of Americans seriously wondering about the impartiality of our justice system. And then it came again to the fore in February, about a month ago, when we dealt with the case involving a Muslim inmate, a death row inmate who wanted an Imam with him in the execution chamber and was told that he couldn’t have him there with him, because the only clergyman allowed in there was the one of the staff. And the only one on staff was a Christian clergyman. And so, again, it was just especially because the facts of that case are so heart-breaking –it’s like your final moments! And the fact that it wasn’t just, like, no clergyman was available. I think Alabama has actually moved to that position now, which I think is bad for other reasons. But it was like, “Well if you happen to be Christian, you’ll get him.” Right?

BM: Right.

AU: And so I think we’re consistently seeing this. And of course there’s the bigger looming question of how partisan Supreme Court is. And we saw that blow up with the Kavanaugh hearings.

BM: Right. So you’ve outlined so many challenges to trying to help the public understand the nuances of this issue. Obviously there is compelling empirical evidence that you mentioned from different scholars who’ve been researching the success of religious liberty claims by different religious groups. You’ve talked about public understanding of how the Supreme Court and other courts have interpreted the First Amendment. And The New York Times editorial board piece. So with this very loud media landscape, where people are talking about this issue in very polarising ways, what have you found has been successful when you’re talking about Muslims and religious liberty, when you’re trying to reach different audiences – and especially audiences that might be hostile, or questioning the research and evidence that you present in your book? Has it been that empirical evidence is really helpful? Have you found personal narrative . . . ? I know in your book you weave in some of your personal narrative with your family growing up in Florida, if I remember correctly. So what has been successful? Do you change your tactics or strategies when you’re speaking to different audiences?

AU: So in terms of whether or not this is successful, I think that’s a question that remains to be seen once the book comes out and I use it as a sort-of launching pad for conversation and real engagement – which is what I’m hoping to do with it. But I think you raise an important question. I think that’s what I was also trying to get at when I said this framing of The New York Times’ editorial board . . . and I also understand that it’s probably getting a compelling title. But I made it a point to say that I thought it was more extreme than it needed to be. And part of that is just sort-of forks into how I wrote this book to begin with. I just made . . . I made a concerted . . . . It was actually a struggle to write about anti-Muslim issues in the US and not to fall into the type of tone and rhetoric that tends to dominate the space. I’m not actually sure that I’ve seen a book that really gets into the question of Islamophobia, and does it in a way that tries to make peace and reconcile with the people who are engaging this rhetoric. And that ultimately is, I think, why a lot of this literature just isn’t having an impact. I don’t think it’s enough just to kind-of like use it to hammer other Americans. I think the point is . . . OK I aim to articulate what’s actually happening. I’m not going to sugar coat it (20:00). But I’m also not going to use it to make assumptions about . . . certain types of assumptions that I think are probably a little bit too common now. Which is this idea that the person making these arguments is either inherently “dumb” or “bigoted” is something that we hear a lot. And I try to stay away from those words. Because I think it turns people off. It turns off the precise people that you need to reach. It makes them uninterested and it makes them put you in a particular box. And so I try, to the extent possible, to use language that shows that to some extent I understand their concerns. And I see them as another human being who is motivated by things that a lot of human beings are concerned about. A huge one that I keep hearing about is this idea of security and the way that Muslims have been portrayed in the circles . . . and with the leaders that they listen to, as a threat to the security of them, to their families and to their country. And part of my effort here, in humanising this, is like, “Guess what? I feel that, too.” Because I am also human, right? And so it’s hard to explain that a) I’m not going to put you down for your concerns, but I’m also going to explain to you how I have those same concerns and yet, even with those same concerns I don’t think that that justifies, or requires that, we limit the rights of Muslims, or of anyone else. So to the extent that we can measure success, I think some of the people, that interact with that group, which have read the manuscript, feel that I’ve done that well. So it remains to be seen.

BM: Yes. And to follow up on the question of audience: when you were writing it, did you imagine that you were equipping . . . were you trying to “robe the choir”, you know, “feed the choir”… are you “preaching to the choir” intentionally so that they have the tools that they need to continue to “sing out loud” – to use the metaphor for too long – to say that that “Islam is a religion: here are resources that I found from this book that help me make that argument?” Or are you trying to convert other people? Are you trying to reach an audience that already disagrees with you, or perhaps doesn’t quite know, and you’re trying to bring them over to your understanding of things?

AU: Well, the funny thing with the book is that I sort-of take aim – in my very civil, calm way, you know – across the political spectrum. So, roughly the last half of the book really looks at the way that I think that liberal allies of the Muslim community are, in their own ways, turning it into something that is not a religion. And why I think that this is really problematic. So the question really is: will I have any friends after the book? (Laughs).

BM: (Laughs)

AU: But the way you phrased the question was interesting. Because you said, “Are you preaching to the choir or trying to give them the tools to make the argument that Islam is a religion?” And it’s interesting because I’ve written about the book topic in mainstream news outlets, The New York Times and more recently The Washington Post, and a lot of people do get caught up in that. Like this question of “Well is Islam a religion, or is it not a religion?” “How do we define a religion?” “Is the dominant frame here the Protestant conception of what a religion is, and is that the core of all this?” And I actually don’t get into that. I sort-of mention that as an introduction as like “Yeah, that’s going on – but that’s not relevant.” This book is not a philosophical, deep dive into what constitutes a religion. I think that’s not what’s important. I think a lot of other people have done that. I think it would be interesting to look at that again in the light of modern political debate. But it’s more so: OK, I’m talking about the law, and the law has its own way of figuring out what’s a religion for purposes of protection under the US Constitution. And that really is the only definition that matters when it comes to legal grades. So there’s various philosophical definitions that have been adopted by the courts. But, again, the relevance is only to the extent that it’s been adopted by a court.

BM: That’s so interesting. Do you think that there’s a disconnect between conversations in Religious Studies as a field about what religion is, and in the legal field about what religion is? Are the courts listening to Religious Studies scholars when they’re trying to make sense of what constitutes a religion and what doesn’t? Or is it its own tradition, and they’re just referring back to their own tradition and not really in conversation with Religious Studies scholars?

AU: Well I mean, currently, it’s Paul Tillich‘s definition of religion that has really . . . The US Supreme Court has never defined religion. But federal courts have. And so there isn’t, like, this one agreed upon definition in the legal world (25:00). But for purposes of actual legal protections they understand . . . there is an understanding by the courts that whatever the definition may be, it has to be pretty broad. And that judges are not in the best position to be defining philosophical parameters of what constitutes religion. So to the extent that they can turn to philosophers and religion scholars to have the terminology and help figure out some sort of way to articulate this, they do that. But they’re more sort-of concerned about “How do we capture what we’re trying to protect without necessarily creating too strict a boundary?” Because ultimately this is about constitutional protections. And we have to . . . . So the emphasis really tends to be on what judges can and cannot do. We can’t interfere with questions of religious doctrine. Whether something is important to a religion, or central to a religion, it doesn’t matter. It could be the most peripheral element. If you’re religion-based it still gets protected. And so that’s really interesting, also, if you start tying it back to the discourse around “Islam is not a religion”. Because a lot of that discourse tends to be “Well, Islam is not just a religion”. Or, more specifically, as some pretty high-profile people have said, “Only sixteen percent of Islam is a religion.”

BM: How do they quantify that?

AU: Well my sense is that it all comes from a study or extensive ongoing studies done by the Centre for the Study of Political Islam, CSPI, and they actually, apparently, have gone through all the various Muslim core texts and have sort-of categorised what they think counts as religion, versus politics. And based on this categorisation have come up with the sixteen percent number.

BM: Wow! (Laughs).

AU: And of course it’s like, you know, the fact that outsiders are sitting there parsing through this way, coming up with their own definitions of where religion ceases to be religion and politics starts. It really kind-of shows: a) how ridiculous the process is – purely from an intellectual perspective – but then also what it leads to.

BM: Right.

AU: And that’s exactly the sort of thing that judges have to stay very far away from.

BM: Right. Wow. Well as we wrap up, do you have any thoughts about the future? Do you think that we’re moving in a positive, or negative, or neutral direction? Are you seeing groups that are popping up that are more vocal in their defence – I don’t know if defence is the right word – but their explanation that Islam of course is a religion? Or are you seeing more and more groups that are popping up, making this argument that Islam is not a religion? Where do you think that we’re heading? And I know that’s a very broad question, so you can answer in the courts, or just in the public discourse. Do you think that there’s reason for hope, or reason for some concern? Or both?

AU: I would say both. In terms of the people who might be popping up to say that Islam is not a religion, I think that they are not yet popping up (in court) – at least not in that form – because I think that . . . .What the book seeks to do is articulate a problem. And once I articulated it, lots of people were like, “Yeah. I heard that!” But you know they just sort-of dismissed it. And it’s really about “Don’t dismiss it. Focus on it.” And even more recently, with the Australian Senator commenting on New Zealand mosque attacks, he put out an official statement that said, “Islam is not a religion and these people are not blameless, even if they are essentially being gunned down in their own house of worship. They are not blameless.” And again it was just like people were like: “Oh my God! This is crazy!” But it was like: ‘It’s crazy!” And then attention sort-of diverted from it. And my intention was to bring it back. “You’ve seen this before. It’s happening again.” An official statement put out by politicians in the most gruesome circumstances and I’m trying to direct the attention to that. Because you can’t really take it seriously, and begin to figure out a solution to it, if you don’t actually realise it’s happening.

BM: Right.

AU: And if you don’t realise it’s part of a larger concerted plan with particular goals in mind . . . So in terms of the two different camps that you’ve mentioned I think the side that’s saying Islam is not a religion is gaining steam. There’s a piece that I cite in the very beginning of my book, but that was written by David French, a very prominent conservative commentator and columnist with The National Review. (30:00) And he says this. “Every time that I go and talk to conservative audiences about religious liberty, the first question is always: ‘Does everything you just said apply to Muslims?’” And so, there’s plenty of evidence that this is gaining ground. It’s becoming a very common argument. And I think it’s time to sort-of focus our energies in articulating proper responses to that.

BM: Well, thank you for doing that so compellingly in your book. It’s a really compelling, cogent, explanation of this line of argument that we’ve seen come through certain conservative circles. And then you also, as you mentioned, talk about the ways that folks across the religious political ideological spectrum are eroding the sense that Islam is a religion. So thank you for that contribution. As a reminder to our Listeners, the book is out on July 6th. The title is, When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom. And you can pre-order it now. Thank you so much, Asma, for coming in. I really enjoyed the conversation.

AU: Thank you, Ben, for having me.


Citation Info: Uddin, Asma and Benjamin Marcus. 2019. “When Islam Is Not a Religion”, The Religious Studies Project (Podcast Transcript). 24 June 2019. Transcribed by Helen Bradstock. Version 1.1, 13 June 2019. Available at: https://www.religiousstudiesproject.com/podcast/when-islam-is-not-a-religion/

If you spot any errors in this transcription, please let us know at editors@religiousstudiesproject.com. If you would be willing to help with transcribing the Religious Studies Project archive, or know of any sources of funding for the broader transcription project, please get in touch. Thanks for reading.

This work is licensed under a Creative Commons Attribution- NonCommercial- NoDerivs 3.0 Unported License. The views expressed in podcasts are the views of the individual contributors, and do not necessarily reflect the views of THE RELIGIOUS STUDIES PROJECT or the British Association for the Study of Religions.

The BASR and the Impact of Religious Studies

A panel on the public impact and engagement of Religious Studies/Study of Religion/s led by committee members of the British Association for the Study of Religions, including Dr Stephen Gregg (Wolverhampton), Dr Christopher Cotter (Edinburgh), Dr Suzanne Owen (Leeds Trinity), Dr David Robertson (The Open University) and Dr Steven Sutcliffe (Edinburgh).

Issues discussed include why RS continues to be a “muted voice” in public discourse; minority religion and the law; podcasting; and new audiences for RS.

This was presented as part of the University of Edinburgh’s Religious Studies seminar series.

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A transcription of this interview is also available as a PDF, and has been pasted below.

The BASR and the Impact of Religious Studies

Podcast with Steve Sutcliffe, Stephen Gregg, Christopher Cotter, Suzanne Owen and David Robertson (12 March 2018).

Transcribed by Helen Bradstock.

Audio and transcript available at: The BASR and The Impact of Religious Studies 1.2

Steve Sutcliffe (SS): Ok. Well, thanks for waiting on a bit. Sorry about the delay in getting started. Because impact and knowledge exchange are so much the discourse of the day for academics – whether you’re still a research student, or whether you’ve got a post – we thought it would be useful to have some kind of a brief event where each of us, from the committee of the British Association for the Study of Religions, say a few words about what they thought some of the challenges and issues of that were for the study of religions, and for Religious Studies in particular. So we tried to put together this panel to tie in with a committee meeting of the British Association of the Study of Religions, which we’ve just come hot-foot from in the McIntyre Room. Because, of course, our committee members live all over the country. Stephen, in particular, has come up from Wolverhampton, and has spent most of the day on the train even getting here. And Suzanne, who’ll be familiar to some of you as a former student here, has come up from Leeds. So we thought, “We’ll be all in the one place, so let’s also do some sort of outward facing event.” So we’ve got four brief, informal presentations from each of the folks here: David Robertson, Christopher Cotter, Stephen Gregg and Suzanne Owen. And I thought I’d introduce it first, with just a few words on the perspective of the British Association for the Study of Religions, in so far as it represents Religious Studies scholars and Study of Religion scholars in the UK. And some of this will be familiar to some of you, but it may be less familiar to others. And we’re not giving you a kind of official line. This isn’t a BASR statement, it’s just individual committee members’ views on – what they call in the old clichéd media – the burning issues of our time. So the British Association, just to give you a little bit of history – this is me, by the way! I’m Steven Sutcliffe. And when I’m not teaching here, I’ve also been president of the British Association for the Study of Religion, for the last two and a half years. So the BASR began in 1954. And it was part of an organisation called the International Association for the History of Religions, which was set up in 1950. And then later on BASR, in 1999, helped to launch the European Association for the Study of Religion, which is very much still in business. And we actually hosted the European Association’s first annual conference in Cambridge, that year.* We began, in the mists of time, as a dozen or so members in what seems to have been a fairly clubby style, based around Oxford, Cambridge and London. But we’ve now grown to about 180 fee-paying members. And we’ve been helped very much getting the membership list nice and lean, with all paying members, with our membership treasurer Chris Cotter, here. We publish an electronic Bulletin twice a year, and we publish a journal once a year. We hold archives of the Bulletin and other papers in the Bodleian Library in Oxford, and one of our members, Chris Cotter again, is currently completing a small project on the oral and documentary history of the British Association, which we hope to build on in the future, for some more grant funding, to get a larger history for the study of religions in the UK. Past presidents – in which august tradition I’m very proud to stand – have included Ninian Smart, Geoffrey Parrinder, Ursula King, Kim Knott and Marion Bowman. So, I give you this institutional background just to be sure that you realise that we’ve got about 60 years-plus of a learned society, promoting the study of religions in the UK. We define ourselves in this way, which is consonant with the International Association of the History of Religions, and the European Association for the Study of Religions: “The object of BASR is to promote the academic study of religions – understood as the historical, social, theoretical, critical and comparative study of religions – through the interdisciplinary collaboration of all scholars whose research is defined in this way. BASR is not a forum for confessional, apologetic or similar concerns.” Most members of our association have Social Science or Humanities backgrounds and are interested in working across religions in a comparative and theoretically informed way. Looking to analyse wider patterns in behaviours and belief including, importantly, the history and uses of the category “religion”. Our scholarship is not normatively committed to particular traditions or worldviews. And so, while some of our members include the study of theology in their portfolios, we don’t practice – we don’t do Theology per se. (5:00) Coming to this question of impact and engagement, we think in the life-time of the association and, of course, before the association – because the study of religions, in at least the European contexts, goes back to at least the mid-late 19th century – we think we’ve developed an excellent store of knowledge about religions and religion. And we transmit this store of knowledge to our students and we disseminate it in our publications. But, of course, the call for demonstrating impact and engagement out-with classroom and conference has brought us a new set of challenges, like most academic fields. So, well and good. We’re just like other learned societies and disciplinary fields in the modern academy. We’ve got to come to grips, now, with this added level of work in already packed portfolios – this added work about engaging the knowledge we produce, and having a social and public impact with the knowledge we produce. However, the category religion is bound up with an especially complex set of issues and positions that permeates education, politics, church-state relations, media and law to name just a few fields. Now, I’m not arguing that there’s something special about religion, but I am arguing that it’s particularly heavily-freighted and loaded with assumptions and contestations that bring an unusual set of issues for us to deal with in our field. So, that’s happening. At the same time, specific named religious traditions have developed their own associations since 1954- or perhaps they pre-existed 1954, anyway – their own journals and conferences, in an era of increasing specialisation. So that raises the question of what the general theoretical comparative study of religions might be for, in terms of exchanging our knowledge and impacting with our knowledge. That’s really the thing that faces us as an organisation whose raison d’être is to work theoretically with the historical concept of religion, and comparatively across more than one tradition, for example. So that’s a kind-of very brief, potted history of where BASR comes from, what it sees itself as having being doing effectively, and where we are now. The arrival of knowledge exchange, of impact – impact was 20% in the 2014 REF and will be 25% in the 2021 REF – is now a particular challenge for us. So this formal panel is specifically about what impact is Religious Studies making, and what knowledge is it exchanging? So having said that, I want to now open the way to our first contribution on that theme. And it’s Dr Stephen Gregg from the University of Wolverhampton.

Stephen Gregg: Thank you, everybody. And it’s always nice to be in Edinburgh. My first ever BASR conference as a not-so-young post-graduate student was in Edinburgh, I think in 2007. So it’s very nice to be back here. And thank you to Steve and Naomi for organising this. I’ve just got a little ten minute slot and I’m going to try not to be too formal in this. Because what I want to talk to you about is based on some research and thinking that I’ve developed in recent conference papers and also a McGuire – and I’ve made some modest contributions to this debate myself. And this examination of lived or living religion preferences people not texts, practices rather than beliefs. And this cutting edge of the study of religion, I want to argue, is absent when we look at media discourse, political discourse and, crucially, the interdisciplinary discourse when it approaches the study of religion in different contexts. And I want to give you just a couple of examples of this, because I’m very aware that we’re short on time here. One example is political discourse. You may have noticed in the cabinet reshuffle last week, that one of the new faces is Rehman Chishti, who is a Conservative MP of British Asian heritage. And under the old Government of David Cameron he consistently lobbied parliament to use the term Daesh instead of ISIS, when it was talking about the terrorist group in Syria and Iraq. And he did this on the grounds that he didn’t want the word Islam, or anything Islamic, linked with a terrorist organisation. And I totally understand the political expediency for that, to help with community relations. But the problem I have with this – and this isn’t a deep analysis of ISIS, this really isn’t the time or the place for that – but the problem I have with that is the assumption behind it, which is: anyone that commits a violent act, in the name of religion, isn’t a real Muslim; or, if we’re thinking of suicide bombings in Sri Lanka in the Civil War – they’re not real Buddhists; or sexual abuse by clergy isn’t something that a real Christian would do. And this understanding of religion as a benign act, this essentialism and reductionism of what religion is, takes away the everyday experience of people that I hope you disagree with in the name of religion, but they are doing so in the name of religion. And so what we get is a confessional, theological approach to what religion is, essentialising in a benign hermeneutic circle, which I think mutes the voice of people that are understanding the everyday experiences of these religious practitioners – whether we agree with their actions or not. This saturates public discourse within the media, within politics. It’s always faith leaders that are interviewed. It’s never an expert on a particular religion. It’s always an Imam or someone from the British Council of Muslims or someone from the Hindu Council of Britain and so on. And again we’re preferencing this notion of confessionalism. We can see the new initiative of the Religion Media Centre. We can think of religious literacy projects that have run out several universities in recent years. We can think of the Archbishop of Canterbury saying how important it was- just in the last few months he’s said this- that we improve religious literacy. Well I don’t think anyone in this room would disagree with that. But whose understanding of religion are we going to improve the literacy of? The confessional theological understanding of the Archbishop of Canterbury or the academic study of religion in diverse contexts? This filters down through education systems as well. (15:00) You can think of our recent or current – I should say – education policies where the study of religion is not a part of the National Curriculum, but is still a legal requirement to teach in schools. And I have to say, I ‘m not an expert on the Scottish education system but, certainly in England, religion is something to do, not something to study. It is something that is practised and it is confessional from its starting point. And it concerns me that Religious Studies has become a muted voice within this discourse. Just briefly, I wanted to talk about interdisciplinary contexts. If we’re changing what we mean by religion, by looking at everyday practices, by people instead of texts, practices instead of beliefs, if we’re understanding mundane everyday actions as religious actions, then when we talk to an art historian or an archaeologist, or a museum curator or someone in textual analysis and we’re using the same terms but meaning radically different things – how is that working in an interdisciplinary way? I wonder that we’re often having divergent, not convergent conversations. But I don’t want to be completely negative about this. I want to suggest that there are solutions. Talking to Steve about this informally, he’s used a phrase – a couple of times – which has pricked my ears up. Steve Sutcliffe has said, “We need a Ninian Smart moment.” Which is: we need a new revolution as to what the study of religion is, perhaps beyond the Religious Studies of the late 20th century. And I think we need to start by looking at public discourse and focussing specifically on diversity. And I think it’s very simple and we make small simple steps. Because, when you’re trying to explain to a journalist that, actually, this is complicated – that’s not what a journalist wants. They want sound-bites. They want public discourse about our academic disciplines to be simple and to be black and white. Well binaries don’t work anymore, we know that. Look at religious identity, belonging, insider/outsider: it doesn’t work with binaries. So, I want us to make those first small steps by focussing on diversity and particularly hyper-diversity. And if we take those small steps, perhaps – the Religious Studies cutting edge – this new move away from textbook essentialisms of “Christians believe this”, or “Hindus do that”, can filter down into public discourse about lived religious experiences, beyond the textbook boundaries of identities and practices. Thank you.

SS: Thanks very much Stephen, and we’ll move swiftly on, so we’ll have the four presentations and we’ll have plenty of time for discussion about the themes arising. So we’re very pleased to welcome back Dr Suzanne Owen, who studied here for her PhD, and her undergraduate degree, and is now Reader in Religious Studies at the University of Leeds Trinity. I think Suzanne is going to address the question that I mentioned of the category of religion, and how this was an important part of the expertise of our field. And she’s going to be looking at a case study where expertise in how categories are used actually does have some quite important impact.

Suzanne Owen: Yes. Well, hello. So I’m going to talk about the charity registration of a particular case, showing up an area where scholars of religion have had some impact and where they could have even more. And this case, in particular, shows these points. So the charity registration is one means by which a group can claim status as a religion in the UK. As groups must also prove that their religious activities are for public benefit, as a charity, this then domesticates religion by forming groups to conform to, perhaps, liberal Protestant Christian values that religion is a force for good and benign. It is interesting to examine how groups negotiate this criteria for religion, as defined by public bodies, in order to highlight both the problems with defining religion, and how the state marginalises groups that do not fit their criteria by denying them access to certain benefits. Not only is conforming to state definitions of religion a challenge for groups but – according to Matthew Harding and his book on Charity Law and the Liberal State in charity law we find the state marking out certain purposes as charitable according to contested conceptions of what is the good, and then extending legal privileges to those citizens who pursue those purposes. (20:00) So taking a critical religion approach, similar to the work of Timothy Fitzgerald and others, to examine critically the social processes whereby certain groups are counted as religions, as James Beckford also noted, we can really see how the category of religion operated in public discourse and then actually creates a kind of public conception of religion that gives it status and legitimacy. So, in my case, the focus is on how the category of religion operates in charity registration cases, looks at how religion is framed in charity law and is then interpreted by the Commissioners. And these Commissioners are not religion specialists, as you can imagine. They come from Law and Economics, and other areas like that. And so they are using a kind of folk understanding of religion in their conception, that’s been handed down through case law. So the case of the Druid Network was for registering as a charity in England and Wales. Scotland, of course, has got a separate commission for registering charities, and so the Druid Network case was only for England and Wales. But there are groups in Scotland, of course, that have had their own negotiations with the state. So charity registration as a religion – as I said, this kind of folk understanding of religion has been passed down through the generations. It defines religion in a certain way, which is based on their understandings and experience of religion in this country, mainly liberal Protestant Christian. So the criteria is: belief in a Supreme Being or Entity, worship of the Supreme Being or Entity, theological cohesion and ethical framework. So every religion, or group that wants to be registered as a religion, needs to prove this criteria or show evidence of it. And some groups have failed to do this, like Scientology, and the Gnostic Centre, and the Pagan Federation as well. But the Druid Network’s success has made it a significant case in law, because it actually altered the definition of religion in charity law, slightly. And much of their success seems to be due to the influence of scholarship on religions – particularly a statement that was sent in with the application by Graham Harvey at the Open University, in Religious Studies. And this was cited repeatedly in the decision document that you can get on line, where you can get the charity commission decision documents. And they are repeatedly citing his statement as an authority for giving them a reason, a justification, to grant charity registration to the Druid Network as a religion. So the problems for the initial application by the Druid Network was they had problem trying to fulfil the criterion of belief in a Supreme Being or Entity. And the Druid Network wanted to present the concept of Nature as this Supreme Entity. And they failed in their first application but, as I said, in their second application with Graham Harvey’s statement, they gained success and were able to convince the Charity Commissioners that Nature could be conceived of as a Supreme Being or Entity. And thus they’ve – well, in my view, they haven’t actually changed the definition of religion, but they’ve expanded it. And this is definitely an issue, because after their registration it was thought that other pagan groups would have an easier time. And this is not the case, because the pagan federation’s application came after – o r one of their applications – and they still failed. And they failed on theological cohesion. And they contacted me because they knew that I was working on the Druid Network case. And, basically, I think for them they would either have to present themselves as a single religion (which they don’t at the moment – they are an umbrella of different pagan groups) or to challenge the definition of religion in charity law. And, as far as I know, they are not going to do that anymore. And they’ve now decided to apply in a different category, like for education or some other purpose. But still, they need to register as a charity. Groups have to register as something if they’re non-profit, and so forth. So, not for religion for them, it seems. And so I think the next step then is . . . Eileen Barker’s also written lots of witness statements or supporting statements for groups, and she wrote one for the Pagan Federation at one time.(25:00) When they failed she wrote something along the lines, reported by Michael York, that “If they don’t accept the Goddess as a Supreme Being then they’re sexist” or something along those lines that Michael York had reported. So we are already being employed to write statements for groups applying for charity registration as a religion. And I think the more that we are involved in such cases, the more we can influence on trying to erode the popular conceptions of what religion might be. But then, beyond that, there’s also the issue of: why have a separate category of religion at all, for charities? The charity’s work is for public benefit. Why does there need to be distinction between a religious charity and a non-religious charity? And this special sort-of status of religion, I think, does not make a huge sense in religion and just ties them in knots, constantly, when they’re trying to define whether a group is religious or not. But there may be . . . this is an area where we can look more broadly at how the category of religion is operating, and also how it is actually a hindrance and a problem within the state as well. So we’re looking at the discourse and conception of religion, so what that means, of course – the implications of that. Is there something called religion that we can see and define? And my view, of course, of that is that it is a part of discourse; it is a kind of construction. But the state does not see religion that way. It sees it as sui generis: as something that is unique, and something that emerges out of self in distinction to politics, economics and culture and other areas. But by doing that, you marginalise and limit the activity of religions, so that: they are not meant to be political; they are not meant to be making a profit. The problem with Scientology is that, perhaps, they’re seen as a business. And that is the issue. They might not state that, but it might be an underlying bias. And the same thing . . . the way that Government gets angry every time the Archbishop says something political, because religions aren’t meant to be political. So you can see how this sort-of permeates throughout the discourse. And when you study the discourses on religion, you can see these patterns. And also the conception of seeing religion as being inherently good, as well. That plays into that. So, lots of areas where we can actually look at these discourses and how they are defined in law. Thank you.

SS: Ok. So we move onto another kind of case study where this is impact going on, and in Suzanne’s talk, there, it was interesting to see that a key witness to the Charity Commission is a scholar of religions, a senior scholar of religions, in the Religious Studies tradition in the UK. So there’s something going on there – even if it’s room for changing the definition or pushing further at that – that there’s impact from the scholar. This time I’ve got Dr Chris Cotter here, who’s going to talk about another empirical example of impact – this time within the wider scholarly arena of student knowledge, spread around the world, which is one of the criteria of the 2014 REF and will be again in 2021, probably with an expanded remit. In other words, the ability of scholars to effect classroom understanding and pedagogical disseminations of good ideas and cutting-edge theories of research on religion – with a particular focus on postgraduate students. But Chris will tell you about the Religious Studies Project that he co-founded with David, here.

Chris Cotter (CC): Indeed! And as our business cards say: “The Religious Studies Project: Podcasts, Opportunities, Debate!” And this – we’re actually recording for the Religious Studies Project now. We’ll not be recording your discussions so feel free to speak freely. So, the RSP began in May 2011 when David and I met in the bar of Teviot Row House, and decided to record a couple of audio interviews that were passing through this very Edinburgh RS Seminar series. And, formally launching in January 2012, it’s become a truly international collaborative enterprise. We’re currently headline sponsored by the BASR, also the North American Association for the Study of Religions and the International Association for the History of Religions. (30:00) In September 2017, we became a Scottish Charitable Incorporated Organisation – so, one of those educational charities that Suzanne was mentioning. By this point we had amassed over 250 podcasts of around 30 minutes each, with leading scholars on cutting-edge theoretical and empirical issues in the study of religion, in combination with regular response essays that reflect on, expand upon, or critique the podcast output. And, by 2017, listeners had downloaded our podcasts over 400,000 times – with new podcasts averaging over 100 downloads in their first week, growing to over 7000 for some of the more established ones. The website receives over 150,000 hits per year and we’re currently followed by over 4700 accounts on Facebook, and 4200 on Twitter. But, why do podcasts at all? So, back in 2012, we could see a number of advantages to the podcast format. We thought about our own consumption of the medium. They provided us with company when engaged in lonely solitary tasks, a feeling of community, personally curated 24/7 radio station on topics of interest, and an accessible Edu-point to a wide variety of topics. But, where was the podcast for our chosen discipline the academic study of religion? So we decided to start recording the podcasts that we wanted to hear. And this format, we think, democratises knowledge and humanises knowledge production, by giving listeners a chance to hear academics talking naturally, and offering an introduction to the topic somewhere between a Wikipedia entry and a full-length journal article or book. A lot of material can be covered in half an hour, yet this can be digested at the listener’s own pace, time and time again, ad infinitum. And, regardless of our position in the field, we all have to focus our reading, and a podcast can help fill those gaps that we don’t have time to read, and help us to keep up with the latest research and current perspectives of older scholars and themes. But also – in an era of departmental streamlining and closure, and with increasing isolation and stress brought on by the marketisation of education, and by limited budgets for conference participation, etc. – regularly listening to a podcast, we hope, can provide a vital connection to the world, outside the confines of one’s own institution, that can be academically stimulating and provide a sense of community and common purpose. And similarly – given the increasing pressure to relate research to public interest and to make sure that our research is accessible for the public and has impact – recording a podcast is a simple and efficient way to disseminate research freely and accessibly to thousands of potentially interested listeners, and in perpetuity. So, when setting up the RSP, we quickly adopted an attitude of “Don’t wait to be given permission.” And this attitude has pervaded our output to this day. The point wasn’t merely to replicate existing academic structures and outputs but to compliment, challenge or expand upon them. And indeed, it’s unclear whether we would have been able to build anything like the resource that we have, had we been bound by a department or an institution, because of the issues in justifying the cost in time and resources for each episode, slow moving checks and balances, and the inbuilt conservatism of institutions. But after we’d built up a reputation, however, it’s been encouraging to see these existing academic structures engaging with RSP outputs in the form of citations, entries into course syllabi and the occasional more creative or innovative engagement. But all of that being said, it’s not been plain sailing, and we’ve been on the receiving end of a number of important criticisms over the years – the most frequent of which has surrounded the quality of our audio, which we’ve been consistently improving over the year, and which I’m not going to dwell on here. But, you know – try producing your own free podcast! But related to this, it was pointed out along the way that our podcasts might be problematic, for example, for listeners for whom English was not their first language, or – how were people with hearing impairments going to be accessing all of this scholarship? So although we do still try to maintain a level of irreverent humour that’s characterised the podcast from the beginning, I think we decided that bit more professionalism on our part would reduce the opportunity for things to be lost in translation. And we’ve also, recently, begun to transcribe our podcasts – which means that now they can be more easily cited and utilised in the classroom, and it’s also softened some of the barriers surrounding spoken English. (35:00) But, of course, that adds a lot in terms of time and cost. You know a half an hour podcast can take two, three for hours to transcribe. On a different note, given our – by “our” I’m referring to David and I – our situatedness as two white, relatively privileged, relatively heterosexual British men, who’ve been closely associated with the RS system at the University of Edinburgh for over a decade, and who have very specific, very niche research interests, it’s hardly surprising that – despite our best intentions – RSP output has not been as wide-ranging, representative or diverse as it arguably should be. A simple lack of resources is partly to blame – including time and money to fund travel etc. – as is the need for a timely and topical content. You know, if we’re faced with a choice between a less than ideally representative collection of scholars or not recording anything at all, we’ve generally opted for the former. A more cynical response to all of this might be to ask: “Well, who made us the police of religious studies?” We started this free podcast, why should we bother? We’ve been producing this resource for over five years, in our “spare time” with very limited resources, so of course there’s going to be omissions. Of course things will slip through the net. And of course we will unintentionally repeat and reinforce some of the inequalities that plague the field globally, and in our UK context. And whilst there is undoubtedly some truth in this cynical response, we are keenly aware, however, that we do have great deal of responsibility. We had this responsibility when we started, even though we may not have realised it. But this is particularly the case now, given our growing position of authority in the field and our recently acquired charitable status, and the fact that we’re sponsored by some of the highest bodies in Religious Studies. It’s not just our reputation that’s on the line, any more. So although we might be irreverent, we hope that we do take things seriously. And we’re trying to become more proactive than reactive. Controversies thus far have been relatively few and far between, and we’d like to think that when something has gone awry, and problems have been pointed out, we’ve been gracious, understanding and attempted to move forward in a manner that will preserve the existing ethos of the RSP whilst incorporating the critique, learning from it, and putting measures in place to ensure that things are different in future. And we can, maybe, talk more about that later. There will, of course, always be more to be done. And I’m onto my final page, now! The name Religious Studies Project – we deliberately chose this to be ambitious. As we’ve heard already, the discipline is at a crossroads: departments are being squeezed because of cuts and the neoliberalisation of the academy. The subject is – as we’ve also heard – being balkanised into departments, being made up of multiple Area Studies scholars who don’t seem to have the time or interest in cross-cultural comparison, or of theoretical issues, necessarily. Religion is a more prominent aspect of public and political discourse than it has been for decades, yet it seems that our analysis is not being sought or heard. Our larger Project then, with a capital P, is to get Religious Studies the voice that it deserves. No-one knows what RS does. We can help to change that. We believe that these topics are intrinsically interesting and we know that a person talking naturally about a subject they’re passionate about is always engaging. However, too few of us know how to actually go about this. And these are not skills that we’re typically trained in, as academics. And, moreover, the current academic climate – we’ll see how this develops – rewards us for work aimed only at our peers and all-but inaccessible to the public, in journals, conferences, committees etc. The RSP, here, has built the platform for scholars to put forward their research for free, and in a way that anyone can understand, which after all should be a central concern for the publicly funded intellectual. Thinking beyond podcasting and RS, what can others take from this? Because there’s an important difference of approach between the RSP and traditional academic platforms. Had we sought perfect audio, an ideal website, and perfectly diverse participants from day one the project would arguably never have happened – and certainly not keeping to a weekly schedule. Like Facebook’s original motto, which was: “Move fast and break things”, we use an iterative model where we try a lot of things, and improve on what’s working as we go along. And, in this way, our publishing model is closer, we think, to journalism or software development than traditional academia. But this may be an approach that academia needs to embrace in future. That one perfect journal article, behind a paywall, that belongs to another age. And it’s only really serving your own ego, or publishing houses. (40:00) If you want the public to listen, they have to be able to hear you. Hmm!

(Laughter)

SS: OK. Thanks very much, Chris. And onto David Robertson now, Dr David Robertson of the Open University is going to ask a very clearly-defined question: Who are we speaking to?

David Robertson (DR): I hope I give a clearly-defined answer.

SG: The people in this room!

(Laughter)

SS: Yes, well today that’s true isn’t it? But we’re recording it for the Religious Studies Project, so it will be a podcast going out to the world.

DR: Good

Audience Voice: As long as they speak English!

CC: Alright! I’ll see you afterwards . . .

(Laughter)

DR: Edit that out please! Yes. OK. To slip into business speak for a little minute: if this has been a SWOT analysis of the field, then the previous panels have been mostly on the strengths and weaknesses, but I want to focus instead on threats and opportunities. So as not to – because I’m last – to end on too pessimistic a note, I’m going to start with the threats.

(Laughter)

DR: But I want to say, before I start, that we honestly and seriously face the issues before us. Because I don’t think you can answer a question before you correctly understand the question. In short, I think that the current muted voice of RS is not the issue per se but is rather a symptom of larger currents of which, I think, RS is particularly vulnerable. The first is de-traditionalisation and anti-elitism. Now I’m sure I don’t need to point out to anybody here that traditional institutions are increasingly challenged. The scholar can no longer expect their word to simply be accepted as authoritative. I think this will ultimately be for the best, but it will certainly require those who are interested in speaking to the public, to realise that our voice is but one voice in a marketplace. This means we need to make the effort to speak directly to that marketplace. We need to speak and write plainly and simply and, importantly, without appeals to intrinsic authority. And we need to sometimes put aside concerns that are of primary interest to specialists. But the bigger issue is not only whether the public can hear us, it’s whether they even want to. For the public to regain trust in academia, like other institutions, we need to demonstrate its value to them. Why is it in the interests of the public to have a non-confessional social scientific study of religion? And who is making that case? Secondly, is marketisation and neoliberalisation of the university: scholarship is expected to show public impact, yet academics also need to produce REF-able work for a closed academic market, as Chris was saying. This leaves us between two stools, and our working hours further squeezed. This is further the case because high fees are driving more and more attention onto the quality of our teaching. Again, another thing – but another factor that’s taking our time away. The economic values of qualifications is increasingly stressed. It’s not an easy case to make, for RS, to a lay audience. And emphasis on citizenship and morality now means that secondary RE now has very little to do with tertiary RS. And the third point I want to raise, is that the growth of identity politics means that public intellectuals are increasingly required to speak from a particular insider perspective – which is something that Stephen mentioned. For public discourse in religion, this favours apologetic scholarship over critical scholarship. For policy makers in such a climate, scholarship is only useful insofar as it eases tensions between identity groups. So to sum up, at present, successful public intellectuals in the field of RS are generally those whose work addresses and usually supports identity politics, citizenship and economic factors. Indeed, why would public institutions want to hear from, or support a project which seeks to destabilise ideas seen as essential to social order and to individual self-identity? We need to address this issue convincingly and seriously, beyond a REF panel or the British Academy. However, to turn to opportunities, now: the question posed by Stephen, “Why are we being ignored?” leads to the question, “Well, who are we speaking to?” And this is important ant because different groups have different needs and different expectations. So we’ve heard from Suzanne, talking about the law; we’ve heard from Chris, talking about the university; but there are other audiences, such as education at secondary level in schools. RE is a requirement in schools in the UK, but has long been under-funded and under-supported. (45:00) Certainly, a legacy of public sector cuts and an outdated assumption that secularisation meant that it would ultimately become unnecessary anyway. The conversation has come back recently, starting with Linda Woodhead and Charles Clarke’s: A New Settlement for Religion in Schools, 2015, which built on the Westminster Debates, but has a rather normative Christian position which troubles many RS scholars – myself included – and an emphasis on themes of citizenship, tradition and morals. It did, however, kick-start a rather long-overdue discussion. And this year’s We Need to Talk about Religious Education: Manifestos for the Future of RE, edited by Mike Castelli and Mark Chater, is a much bolder contribution which offers a number of manifestos for the future of RE. It argues that leaders of the RE community are struggling to make clear and safe positioning between the wreckage of old assumptions and the messy incomplete birth of the new. These changes are in part the responsibility of RS but we’ve been slow to take up the challenge. There’s definitely been some progress, however, and a number of colleagues have been much more involved in teaching and learning issues, particularly Dominic Corrywright of Oxford Brookes, who was until recently a committee member of the BASR and Wendy Dossett of Chester. The BASR’s new Teaching Award was designed to reward and highlight such work. But we still need increased clarity on the function of RE at secondary level and how that relates to the function of RS at Tertiary level. And indeed, should those subjects be necessarily related? A fourth audience is media which Steven talked briefly about, but I would like to add a slightly more positive note. The old media is on its last legs. Newspapers and TV channels, as we know them today, won’t exist in ten years’ time. Long-form media, however, like documentary series and podcasts, are growing year on year. We’re in a unique position to be able to seize the means of production here, but it requires clear ideas, strategies and, above all, action. The traditional media still thinks in terms of sensation and conflict. But at the same time there is a move to long-form documentary work which is allowing for greater subtlety and nuance. Ben Zeller‘s recent involvement with the ten-podcast series on Heaven’s Gate, which just concluded, is a great example. By compromising slightly, he was able to influence the series producers enough that it was by far the fairest and most sympathetic portrait ever in the media, not only of that group, but of an apocalyptic new religion, full stop. I’m at present involved in the early stages of two similar projects, although on a much smaller scale. And in both cases simply setting out some of the historical background to the producers, to show that these ideas do not simply just spring from nowhere, has been enough to influence the direction that the project’s going in. If we consider how much time we spend on journal papers and the return on our investment, this is obviously worth doing. And there’s no real reason why such projects can’t be part of a REF submission – it’s something that other disciplines do all the time. The final one I want to bring up, briefly, is policy-makers including security. Now INFORM has had a great influence here, as Suzanne mentioned already. But recently Kim Knot and Matt Francis of Lancaster have done some great work with the CREST project on security and terrorism. Suzanne Newcombe from INFORM and myself took part in a workshop in London for Whitehall and MI6, recently, that they organised. And, actually, the RS focus papers were among the most responded to of the entire event. Similarly the massive European Union Project on Conspiracy Theories COST also involves a number of RS colleagues who have again had considerable impact, there. Similarly, the Open University has had great interest in a proposal to start a course designed for Home Office Staff on dealing with different religions. The short version of this is that, in fact – although these people are even busier than we are – if we can make our services available, there is a ready demand: they’re keen to hear what we’ve got to say, especially if we can make it practical. So we need to think about more realistic ways in which we can make that possible. So just to sum up, then, I want to ask a couple more questions. One is: do we really want to be public intellectuals? Are we prepared to put in the extra effort and learn to play the rules of that field? And if not, are we prepared to concede that role? And what becomes of Religious Studies in that case? Thank you.

SS: (50:00) OK. Thanks very much, David. So that’s the end of our contributions. And then the floor now will be open to some questions and observations, engaging with one or other of the informal presentations that we’ve heard. Just to remind you, I tried to put it into context by emphasising the history of the British association of the Study of Religions and that widely generic field of Religious Studies. We had Stephen talking about the danger of Religious Studies becoming a muted voice, where it had little effect in public arenas; Suzanne was then giving us an example, as was Chris in a different way, of actual empirical impact: REF-able impact. REF-able is this terrible kind-of adjective which we’re all using now, which means “able to be submitted to the REF panel.” Two very different case studies there. And David’s finished off by asking a series of interesting questions about audiences as well as the threats that proceed those. So the floor is now open for any contributions, clarifications from our speakers, or observations.

* Correction from Steve Sutcliffe: The “EASR was founded in Krakow in 2000 and first conference was jointly hosted with BASR in Cambridge in 2001.”

If you spot any errors in this transcription, please let us know at editors@religiousstudiesproject.com. If you would be willing to help with transcribing our podcast archive, or know of any sources of funding for the transcription project, please get in touch. Thanks for reading.

This work is licensed under a Creative Commons Attribution- NonCommercial- NoDerivs 3.0 Unported License. The views expressed in podcasts are the views of the individual contributors, and do not necessarily reflect the views of THE RELIGIOUS STUDIES PROJECT or the British Association for the Study of Religions.

Christian evangelical organisations in global anti-trafficking networks

Produced by R. Michael Feener

American evangelical Christian organizations comprise a significant contingent of the global anti-trafficking movement, and mobilize considerable financial resources around a moral objection to prostitution and sex trafficking. In this interview, we talk with Elena Shih about her ethnography of missionary vocational training rehabilitation projects that train sex workers in Beijing and Bangkok to make jewelry that is sold in the United States, and what this can show us about transnational dynamics of religious activism and non-governmental organizations enacted through the corollary motives of salvific evangelism and social entrepreneurship.

Since the turn of the twenty-first century, there has been a remarkable surge of interest among both academics and policy makers in the effects that religion has on international aid and development. Within this broad field, the work of ‘religious NGOs’ or ‘Faith-Based Organisations’ (FBOs) has garnered considerable attention. This series of podcasts for The Religious Studies Project seeks to explore how the discourses, practices, and institutional forms of both religious actors and purportedly secular NGOs intersect, and how these engagements result in changes in our understanding of both ‘religion’ and ‘development’. These interviews with leading scholars working on the topic across diverse contexts in Asia (and beyond) have been conducted by Dr. Catherine Scheer & Dr. Giuseppe Bolotta of the National University of Singapore’s Asia Research Institute. Our work on this has been generously supported by a grant from the Henry Luce Foundation.

You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us. And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, candy, pocket knives, and more.

A transcription of this interview is also available, and has been pasted below.

Christian Evangelical Organisations in Global Anti-trafficking Networks

Podcast with Elena Shih (27 November 2017).

Interviewed by Giuseppe Bolotta and Catherine Scheer.

Transcribed by Helen Bradstock.

Transcript available at: Shih- Christian Evangelical Organisations in Global Anti-Trafficking Networks 1.1

 

Giuseppe Bolotta (GB): Welcome to the Religious Studies Project. We are Giuseppe Bolotta

Catherine Scheer (CS): And Catherine Scheer

GB: And this is the fourth installment in our series on religion and NGOs. Since the turn of the twenty-first century there has been a remarkable surge of interest among both policy makers and academics into the effect of religion as an international aid in development. Within this broad field the work of religious NGOs, or faith-based organisations, has garnered considerable attention. This series of podcasts for the Religious Studies Project seeks to explore how the discourses, practices and institutional forms of both religious actors and purportedly secular NGOs intersect, and how their engagements result in changes in our understanding of both religion and development.

CS: Since the turn of the twenty-first century, North American Christian NGOs have become increasingly visible actors in the humanitarian sector. One particularly prominent area of attention and interventions for such organisations has been in the global movements against human trafficking. In this interview we talk with Elena Shih about her multi-sited research on US Evangelical NGO’s involvement in the global anti-trafficking movement, and specifically on their projects in Thailand and China. She will explain how her findings contribute to our understanding of the role of US-based Christian actors in this specific field of rights, advocacy and development. Before introducing our guest for today’s interview we would like to thank the Henry Luce Foundation for supporting our research on this topic and the production of this series. So speaking with us today is Dr Elena Shih, Assistant Professor of American Studies and Ethnic Studies at Brown University, also Faculty Fellow at the Centre for the Study of Slavery and Justice. Dr Shih is a Sociologist specialising in gender and sexuality, transnational race and ethnicity, social movements and labour in the Global South. Giuseppe would you like to go ahead with the first question?

GB: For sure. Thank you very much Elena for being here with us. So in your book, Manufacturing Freedom, you shed light on the role played by Protestant NGOs in the Global anti-trafficking movement, looking at long-term fieldwork in the US where the NGO’s are headquartered as well as in China and Thailand where they have projects. So, what led you to specifically focus on these Christian organisations, and how do you position yourself as a researcher in relation to both these organisations and those that you work with in the aid projects?

Elena Shih (ES): Thanks so much for inviting me to be a part of this podcast and for the wonderful introduction and really provocative first question. I actually didn’t begin this project hoping to understand the role of Christian organisations, and I think that understanding the genesis of the methods that led to this project, maybe, sheds light on some of its ultimate findings. So I began this project in 2007, having just begun graduate school in Sociology at UCLA, and having also just returned from three years of living in China; first working with a women’s legal aid organisation in Beijing and subsequently working with ethnic minority youth on the China-Burma border. And at that time I was very concerned with how the growing American interest and investment in trafficking, globally, didn’t really resonate on the ground in China. And so, when I returned back to the United States for graduate school I wanted to understand some of the gaps between the global and the local in manifesting things like the 2000 United Nations Palermo Protocol and 2000 United States Trafficking Victims Protection Act. So I began by attending a series of anti-trafficking conferences and anti-trafficking fairs that were increasingly prevalent in Southern California around 2007. And we saw an enormous response by American civil society, responding to what the United States had called over and over again a “growing scourge” of human trafficking (5:00). And, week after week, I would go to these different fairs and I started to see a pattern of numerous organisations that were working in different parts of the world, but had centred on social enterprise as their way of intervening. And by social enterprise, what I mean is that they were trying to turn to the markets and sell goods – often what they termed “slave-free” goods – as a way of raising funding around human trafficking, but also bringing money and jobs back into the very communities that they claimed people were trafficked from. I happened to get to know two organisations very well – one that was working in Thailand and one that working is China. Both happened to have offices and activist home-bases in Los Angeles. And I began volunteering with them, doing everything from helping them sell jewellery – which was the good that they were selling – to liaising with customers, to processing inventories, and to just generating different kinds of awareness around their cause. And it wasn’t until maybe eight months of volunteering with these organisations – when I travelled to Asia to see their production sites in Beijing and Bangkok – that I began to understand how important Christian faith was for these organisations. What that looked like on the ground is that for sex workers who are recruited to become jewellery makers in this project, across both organisations, Christian worship – an hour of Christian worship or Bible Study – was a mandatory and populated part of their wage, as were different kinds of spiritual and moral rehabilitation. So, I had workers comment to me that they often-times felt like maybe their promotions or salary bonuses were dependent not so much on their labour output making jewellery, or how they were doing on the shop floor, but more in terms of their spiritual growth and how much they had grown to accept Christianity in their lives. So I think, looking back now, in over a decade that I’ve been working on that project, it still is fairly striking to me that, a lot of times, when this jewellery is sold, a consumer or slavery activist doesn’t necessarily know that it’s attached to highly missionary goals. And, for many people, even the fact that it is a Christian organisation or it is a missionary organisation would not be problematic because it is ultimately serving a development goal in the end. Which is that of bringing jobs and economic alternatives to sex workers in Asia.

GB: Right.

CS: Wow. That is a very long-term engagement and it is fascinating to hear how you have really encountered, or kind-of bumped into the religious aspect of these organisations, and how your own experience reflects what the customer sees or doesn’t see in a very interesting way. Now, a question more specifically about these American Evangelical organisations. They comprise a significant contingent of the global anti-trafficking movement and mobilise considerable financial resources around the moral objection to prostitution, as you point out in your research. Can you tell us a bit more about the ways in which these organisations situate themselves within this global movement of anti-trafficking, for instance, in relation to non-faith-based organisations? And also how do they influence the movement’s lines? And how are they influenced by this more general global anti-trafficking movement?

ES: Yes, I think that there’s a really fascinating and particularly American history of the Christian Right, in particular, in the formation of anti-trafficking protocols in the United States and there are definitely scholars who are far better positioned to talk about that than I (10:00). So I would definitely direct listeners to work by two scholars in particular: that of Yvonne Zimmerman, who has a book under the title Other Dreams of Freedom, and then one of my own advisers, Elizabeth Bernstein’s work on what she called the sexual politics of neo-abolition, that documents a really interesting strange-bedfellows-coalition between Evangelical Christian and radical feminists, particularly on the issue of trafficking. But inasmuch as my work is concerned, I think that this actually is a good opportunity to talk about how the work fits into your wonderful volume on religion and the techno-politics of development, because I’ve really seen that religious organisations used the secular politics of rights and development alongside evangelical goals of proselytisation, so that the two are almost mutually interchangeable.

GB: Right

ES: And I think that vocational training has become a really, really popular technical solution for human trafficking, and particularly around something like prostitution, which is framed as a hugely moral problem, and which is framed as an absolute worst choice for a woman in the Global South who has no other options. And so, you see everybody from USAID to these grassroots religious organisations trying to think of ways to retrain people, to provide vocational training, as way of offering other alternatives to sex work. The main problem around it is that when you’re still training people in menial and manual low-wage labour, it still is not much of an alternative. So jewellery is one such menial low wage job, but it’s just one of the numerous commodities that’s now sold as a part of the anti-trafficking movement. You see everything from bedspreads to silk pyjamas being made in India, to traditional Henna craft and silk scarves coming out of Mongolia. And I think these are all part of a concerted attempt among anti-trafficking organisations to, what they call, “leverage the market-place”, to raise funds and awareness around the issue of trafficking. And I think one of the reasons why religious organisations have had to turn to social enterprise is, for the United States as an example, faith-based organisations are often excluded from certain kinds of federal or government funding when religious proselytisation is a core goal of theirs. And also, as religious organisations, they’re able to tap into huge bases of church-goers, parishioners, who see social justice goals as inextricable from Christian theology. And so I think that there’s been a real turn, on the part of churches, to recognise social justice in a reasonably complicated world. And – in a more shrewd, market-based, calculated turn – to find ways for faith-based organisations to fund themselves when they can’t seek other sources of funding.

GB: Right. So we’ve been talking about faith-based organisations, Evangelical movements in the United States, but it’s interesting to see what is happening in the other two field sites you chose which are Thailand and China. And Thailand and China provide two very different legal contexts for the work of Christian NGOs. So, Elena, how do these different juridical and policy frameworks influence the ways in which these NGOs implement their projects on the ground, and how do local perceptions of the articulation between aid and Christianity take shape in these very different contexts?

ES: I think that one of the greatest empirical paradoxes of this project is still that you could have the exact same American Evangelical Christian jewellery project operating in both Thailand and China, which we understand to be vastly different in terms of their political economic regimes. And so, one might classify as Thailand officially as a democratic monarchy, whereas China is more often understood as post-socialist authoritarian (15:00). The way that this plays out is that concretely, on the ground, Thailand offers over three hundred missionary visas to foreigners every year. And that means that foreign missionaries constitute one of the largest sources of tourist income – expat populations – and that their comings and goings are very rarely monitored. But it’s completely legal to be a foreign missionary in Thailand and it’s absolutely prevalent. You know, if you show up to any of the large cities there are public gatherings, churches, Christian churches that foreigners can attend. You contrast that to China which is notoriously restrictive of religious practice and which absolutely would see the presence of American Christians as a threat of imperialism. There are very few places for Chinese Christians to practice. They are almost completely relegated to what are called “home churches”. And as a foreigner, there are like single-designated places where Christian who are foreigners can practise in China. So that’s just the religious atmosphere. Combined with their atmosphere towards foreigners, it’s vastly different from China in Thailand. How this plays out within vocational training organisations for sex workers is, in Thailand sex workers who’ve chosen to work as jewellery makers are able to treat that more as any other kind of job that they might choose. So they’re not required to live on site. They rent an apartment, in Bangkok. A lot of them have part-time jobs, or are actually on full-time jobs working up to forty hours a week because of the pay cut that they have to take from being sex workers to becoming jewellery makers. It just doesn’t provide them with a living wage. And by contrast, in China, because the organisation has to be more careful about the scrutiny of the local police and government censorship, they require all workers to live on site in a mandatory dorm and there’s no way that any of those workers would be able to have a part-time job. And workers definitely feel a bit more stifled in China. And I think one larger difference in how this affects workers’ experience of religion is that in Thailand, given that freedom – or relative freedom – of religion, about 30% of people under rehabilitation have actually converted to Christianity. Whereas in China, where a history of conversion isn’t as prevalent, there are very, very low – it may be one or two people converted in the decade that I’ve studied these organisations.

GB: Right.

CS: Well, thank you very much for these very insightful and precise answers that can give us a grasp of what is going on in those countries. Just, maybe, a last question that is more general: is there anything that you would like to add, as a kind of concluding note, about what we have learned about faith-based activism in this field?

ES: I think the takeaway that I would love listeners to have is hopefully not that faith-based organisations in particular are flawed in their approaches, but that it really is anti-trafficking or human trafficking or sex trafficking as a concept that is flawed and misunderstood, and needs to be interrogated more clearly. Because, ultimately, my work argues that by transforming sexual labour into low wage manual labour these organisations are able to meld Christian ideas around good morals and salvific evangelism within secular development goals around decent work. But these should not be satisfying because we’re living in a world without decent work options (20:00). And I think the last thing that I’ll say about this, or that I’d further caution, is that there’s a growing trend moving away from the Palermo Protocol and definitions of human trafficking, shifting to an increasing number of people wanting to use the term “modern day slavery”. And I think what modern day slavery signals is a gesture towards pinpointing extreme and absolute cases of human suffering. Faith-based organisations and secular rights-based organisations both need to expand their purview of work into maybe taking a little bit of morality out of what we understand is good work, and listening to migrant workers, sex workers around the world who are telling us the different conditions that they’re looking for. So I think what I was saying was that by looking at, and fetishising theses extreme cases of human suffering – the one-off cases in brick kilns or in full sexual slavery – we don’t get to understand the hundreds of people who are seeking to have better lives, working in those areas, where there can be incremental changes for worker health, safety and better access to labour rights and working conditions across the board.

GB: This was really inspiring. Thank you very much, Dr Shih, for joining us at the Religious Studies Project.

CS: Thank you, Elena.

ES: Thank you so much to both of you, and for all of your hard work. And I can’t wait to hear the rest of the series.

GB: Thank you Elena.

Citation Info: Shih, Elena, Giuseppe Bolotta and Catherine Scheer. 2017. “Christian Evangelical Organisations in Global Anti-trafficking Networks”, The Religious Studies Project (Podcast Transcript). 27 November 2017. Transcribed by Helen Bradstock. Version 1.1, 17 November 2017 Available at: https://www.religiousstudiesproject.com/podcast/christian-evangelical-organisations-in-global-anti-trafficking-networks/

All transcriptions for THE RELIGIOUS STUDIES PROJECT are currently produced by volunteers. If you spot any errors in this transcription, please let us know at editors@religiousstudiesproject.com. If you would be willing to help with these efforts, or know of any sources of funding for the broader transcription project, please get in touch. Thanks for reading.

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South American church-state relations

imgPolitics and social institutions are inseparable. Whether we take a look at small-scale or complex societies, we can find that politics is involved with economics, kinship with hierarchy, and of course, religion with the state. The relationship between the last two has been shaped by numerous processes throughout human history; but, if we place our attention in the history of the western world, we can identify a turning point, one that started with the first waves of enlightened thought (eighteenth century), continuing with the posterior massive drop-out of catholic religiosity, and culminating with the total separation of religion and the state. In this podcast, Sidney Castillo interviews professor Marco Huaco Palomino as he addresses the nuances of secularity in several Latin American countries.

You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us. And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, Richard Dawkins memorabilia, and more.

Gods and Demons, Scholars and Lawyers: Brief Reflections on American Religion and Law

Talking to lawyers is a real skill, and Eric Mazur is very good at it. In the subfield of traditional American church-state studies, legal historians, lawyers, lobbyists, and religion scholars convene for conservation and debate, mostly about First Amendment jurisprudence. As Mazur explains in his RSP interview, that conversation has in recent years lost its place, at least at the American Academy of Religion, and so he has revived it with a Religion and Law discussion group, which has met concurrently with AAR for each of the last two years (full disclosure: I have participated in both meetings). These conversations—at the AAR meetings and in the field more generally—are lively, rigorous, and fascinating, but sometimes frustrating. Unlike many other fields, the range of topics is actually quite small but the variety of approaches is wide. This self-imposed limitation was, according to Mazur, a primary reason for forming the discussion group. This is a group of people who come from very different backgrounds and perspectives—and with different goals—but can talk about the same things, namely, court cases dealing with the First Amendment’s establishment clause and free exercise clause. This is the opposite of many subfield groups, who are organized by a method (ethnography, for example) and use that same method on vastly different data sets. Here, we have a quite small shared data set but diverse methods. Everyone can speak at length, using shorthand, about certain acts, cases, decisions, and dissents, and everyone in the room can follow it. But why these people care, and, more practically, what they’re trying to do, can result in some talking-past each other. Few people are as good as Mazur at bridging these interests and assembling the components for a productive exchange.

The interview includes a number of interesting exchanges, as Mazur describes the state of the field, the advent of the discussion group, and his own career. I was particularly interested in Mazur’s answer to the question about why there is an increasing interest in religion and law. He noted that some religion scholars got into studying the law through studying New Religious Movements (NRMs) or minority religions, as they tend to be treated differently under the law. One of Mazur’s books, here.) This focus does bring out a possible tension between two approaches. Are we studying the law, the Supreme Court decisions, and legal language, etc., or are we studying religious groups and how their practices and beliefs shape and are shaped by law? Of course, it can be both, but the different emphases can evince different goals among scholars. Mazur highlighted the tension between those who have a “normative notion” of religious freedom and those who do not (at least not so explicitly.) On the normative side are not just lawyers, but also theologians, philosophers, lobbyists, and even clergy members. Others take a more descriptive/analytical approach, seeing the law as an institution with effects on American (religious) life and thus worth studying in historical or sociological ways.

In my view, there are two ways that the field of religion and law should expand. First, I think that “law” has been taken to mean primarily the First Amendment’s religion clauses, and there are many other interactions between religious communities and the law worth studying. Mazur mentions this briefly in the interview. Religion scholars would do well to learn about tax law or tort law or intellectual property. Law is not simply religious freedom. And, furthermore, religious freedom means a lot more than First Amendment law. The discourse of freedom, the various states of freedom and un-freedom under which subjects live, and the processes by which freedom is manufactured and protected are all topics that could be taken up by scholars of religion and law. Second, delimiting our area of focus to the United States can miss the international context for American religious law. On one hand, the limited scope makes sense, since American law does apply, for the most part, to America. However, American religious freedom, understood as a human right, is being naturalized and exported. This has tremendous ramifications for foreign policy, religious nationalism, and diplomacy. Constitutional scholars who focus on religion largely have ignored these important developments.

That being said, I think there is a place for the type of “traditional” constitutional conversations Mazur has advocated and facilitated. As I stated above, it is enjoyable and somewhat rare to have a room (or some non-physical space) full of people who speak the same language, who know what Reynolds and Schempp and Boerne v. Flores and RFRA mean. It can lead to productive and detailed conversations. Historians and other scholars contribute to public understanding, but they also can be involved in shaping the law, through an amicus brief or as an expert witness, for example. Many religion scholars (though of course not all) are wary to do anything that smacks of “advocacy.” However, if we are writing about contemporary laws and their impact on religious communities, or about the logic structuring certain laws and cases, our work can have effects even if we do not intend them. So, why not be intentional about it in the first place? Or at least be willing to engage in conversation, if not outright “political” action? If we are going to engage in this type of public work, we need a common language to speak. Working with academics can be an unpleasant experience, and our analytical goals can distract from the winning cases or lobbying for particular causes. But, if lawyers and scholars are going to talk to each other, it has to be at least somewhat on the lawyers’ terms.

References

Gordon, Sarah Barringer. The Spirit of the Law: Religious Voices and the Constitution in Modern America. Cambridge, Mass.: Harvard University Press, 2010.

Mazur, Eric Michael. The Americanization of Religious Minorities: Confronting the Constitutional Order. Baltimore: Johns Hopkins University Press, 1999.

Su, Anna. Exporting Freedom: Religious Liberty and American Power. Cambridge, Mass.: Harvard University Press, 2016.

Wenger, Tisa. We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom. Chapel Hill: University of North Carolina Press, 2009.

 

Religion and American Law

In this interview, Professor Eric Mazur discusses a variety of issues relating to religion and law in the USA, such as the evolving state of First Amendment jurisprudence, the Religious Freedom Restoration Act, dominant trends in the study of religion and American law, and controversial legislation such as the Supreme Court’s decision in Burwell v. Hobby Lobby. Dr. Mazur also discusses his efforts to help cultivate a space at the American Academy of Religion that is explicitly devoted to the study of religion and American law. This interview provides an introduction and summary of this increasingly important field.

Minority Religions and the Law, and our general introduction to Religion and the Law with Winnifred F. Sullivan. You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us . And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, potpourri, vintage cars, and more.

Religious Studies Project Opportunities Digest – 2 February 2016

Dear subscriber,

We are pleased to bring you this week’s opportunities digest and would like to express our gratitude to everyone who has submitted calls for papers, event notifications, job vacancies, etc. On that note, we would also like to encourage you to continue to do so (and invite those who remain hesitant to begin)!

It is super easy to have a Religious Studies call for papers, exciting event, or alluring job vacancy appear in future Opportunities Digests! Simply use the submission form, forward them to oppsdigest@religiousstudiesproject.com or, better yet, include said e-mail address in your mailing list for such e-mails!

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September 9–11, 2016

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New Religious Movements and Contemporary Discourses About Religion

As I listened to Susan Palmer’s RSP interview and read about her new co-authored book (with Stuart A. Wright) Storming Zion: Government Raids on Religious Communities (2015), I was reminded why NRMs make such useful case studies in the religious studies classroom. From a pedagogical perspective, the study of NRMs offers a valuable resource for creative teaching and theorizing about religion. In my introductory classes, for example, I use Scientology to illustrate how NRMs have negotiated with the state in their quest for legitimacy. There is plenty of great scholarship to assign, and students are often surprised to learn how seemingly unrelated government agencies–the Food and Drug Administration, the Internal Revenue Service, the Federal Bureau of Investigation–helped legitimate Scientology’s “religion” status.

One of the most useful parts of Palmer’s interview, then, is her insistence on paying attention to the words people use to describe NRMs. Winnifred Sullivan, in her recent book, argues that the US government (and the US Supreme Court in particular) increasingly understands “religion” as “being neither particularly threatening nor particularly in need of protection” (17). The trend, as Sullivan and others have noted, is increasingly to see people as religious by default, even (and perhaps especially) those people who do not see themselves as religious. What, then, are we to make of religious groups whose relationship with the state do not fit this mold? How do we explain relationships so contentious that they result in raids and gun battles? At first glance, the events chronicled in Palmer’s Storming Zion seem to be outliers. Yet Palmer and Wright suggest elsewhere that these kinds of raids are more common than one might suspect. Why?

One possible answer is that increased attention to religion by international governments and NGOs has not necessarily resulted in less problematic models of religion being used by these governments and groups. As Elizabeth Shakman Hurd has pointed out in her recent book, what scholars understand as “religion” often makes for unwieldy government use. Hurd demonstrates how government classifications of religion are by necessity rigid and slow to respond to change, leading governments to understand and engage religion in a clumsy–and in Palmer’s studies, dangerous–fashion.

Of course, most of the large-scale government efforts directed at cultivating appropriate forms of religion aren’t directed at the kinds of groups Palmer studies. It boils down to size, as Palmer and Robertson both note: smaller groups can be more easily dismissed or ignored by those in power. This is another example of the way in which governments separate religious groups into what might be called “serious” and “unserious” camps, an approach sometimes replicated by the scholars who study them. Both Palmer and Davidson call for more work to be done to change this status quo. They would like to see groups with little political or social capital treated similarly to “big name” religions–the groups that get chapters devoted to them in World Religions textbooks. They would like to see, to paraphrase JZ Smith, how the “exotic” NRMs are just another example of “what we see in Europe everyday.” Smith notes the difference by explaining it as a tension “between religion imagined as an exotic category of human experience and expression, and religion imagined as an ordinary category of human expression and activity.”[1] (1). Thus, as Palmer points out, even the seemingly “exotic” components of NRMs–things like brainwashing and deprogramming–should be both historicized and theorized.[2]

These considerations are timely ones. Though the interview focuses on what religion scholars might expect to hear on work related to NRMs–Raelians, Scientologists, millennial movements of various stripes–I was struck by how much of what was discussed would apply to Islam. Robertson and Palmer note how the media and popular culture tend to portray NRMs in particularly dismissive or fear-inducing ways. As events of recent weeks have again reminded us, what do we make of the fact that Islam is often discussed using similar language? The same kinds of militarized policing tactics directed at NRMs have, in recent weeks, been endorsed by a number of candidates for U.S. president as a means to control Muslims in the United States and around the world.

There’s a relevant history to this “NRM-ization” of Islam, particularly in the United States. Those interested in Palmer’s work, and in her work on government raids on NRMs, should also make time for Sylvester Johnson’s African-American Religions, 1500-2000, specifically his study of the history of the US government’s surveillance of and violence towards African-American Muslims. Johnson’s work highlights many of the tensions Palmer identifies: how classificatory criticism (“authentic” religion versus “cults”) bolstered state action against the political claims of new and emerging religious groups (in this specific case, the Nation of Islam). As a result, Johnson argues, “US officials increasingly resorted to the specific grammar of terrorism to represent political Islam.”[3] While scholars do not usually place global Islam within the category of new religious movements, Johnson shows how this early racialization of Islam within the United States shapes how global Islam is treated by the US government today.

For someone like myself, interested in questions of law and religion, the tension between emerging religious groups and state authorities is one of particular importance. Susan Palmer’s interview is a great example of why new religious movements make such good tools with which scholars can think about the study of religion.

[1] Jonathan Z. Smith, Imagining Religion: From Babylon to Jonestown (University Of Chicago Press, 1982), xii.

[2] For one excellent and recent example, see Matthew Dunne, A Cold War State of Mind: Brainwashing and Postwar American Society (Amherst: University of Massachusetts Press, 2013).

[3] Sylvester Johnson, African American Religions, 1500–2000: Colonialism, Democracy, and Freedom (Cambridge University Press, 2015), 382.

Minority Religions and the Law

cult” and “sect” uncritically. Nevertheless, outside of academia, the language of “cults” continues to be used, and particularly through the law, has an affect on the lives of real people. Susan J. Palmer joins David G. Robertson to discuss the intersection between new or minority religions and the law. Professor Palmer describes how she came to study these minority groups, and to realise that they were often being misrepresented, or at least unduly targeted. Discussion ranges from Scientology in France to the Branch Davidians and the Nuwaubians in the US, with issues of secularity, race and “brainwashing” come to the fore. A fascinating overview for anyone interested in how the discourse on “religion” operates in the contemporary world.

Religion and the Law (Winnifred F. Sullivan), Studying “Cults” (Eileen Barker), and Is Britain still a Christian country? (Linda Woodhead), and feature essays by Daniel SillimanEssi Mäkelä, and Kevin Whitesides. You can download this interview, and subscribe to receive our weekly podcast, on iTunes. If you enjoyed it, please take a moment to rate us . And remember, you can use our Amazon.co.ukAmazon.com, or Amazon.ca links to support us at no additional cost when buying academic texts, fake fir trees, playing cards, and more!

Religion, Secularism and the Chaplaincy

As Sullivan and other religious studies scholars complicate terms like religion and secularism, reducing these terms to near incoherence, and insist on the constant intermingling of the sacred and the secular, they leave jurists and legislators in a predicament with important practical consequences.

Religion, Secularism, and the Chaplaincy

By Dusty Hoesly, University of California, Santa Barbara

Published by the Religious Studies Project, on 24 April 2013 in response to the Religious Studies Project Interview with Winnifred F. Sullivan on Religion and the Law (22 April 2013)

Winnifred Fallers Sullivan, Professor and Chair of the Religious Studies Department at Indiana University, Bloomington, may be the supreme interpreter of the intersection of law and religion in American society today.  Each of her three books—Paying the Words Extra, The Impossibility of Religious Freedom, and Prison Religion—treats individual legal cases both textually and anthropologically, examining their particular cultural and legal contexts as well as their wider import for discourse in American law and society generally.  Her work is attuned equally to debates within the field of religious studies, especially to how scholars of religion constitute the object of their study.

In this interview for The Religious Studies Project, Sullivan focuses on her latest project, which examines chaplaincy in secular settings, as well as on her larger body of work.  Her recent presentation, “Ministries of Presence: Chaplains as Priests of the Secular,” uses chaplaincy as a lens for thinking beyond her previous work in critiquing constitutional and legal protections for religious freedom, and arguing for the instability and incoherence of the category of religion as a basis for legal regulation.  Putting aside her study of the management of religion in constitutional settings, in this project Sullivan examines how religion and law shape each other on the ground.  She concludes that chaplains have come to serve a role of ministering to what is increasingly understood as a universal spiritual need, which she labels a “naturalization of religion.”

For Sullivan, the figure of the chaplain in Western Christendom has always been an ambiguous figure, a minister whose duties lie away from church authority or congregational demands.  In modern secular institutions such as hospitals, prisons, and the military, the chaplain’s role remains ambiguous since, unlike doctors, guards, or soldiers, the chaplain is an explicit broker between the sacred and the secular.  The chaplain is paid by secular institutions and beholden to secular authorities, despite the religious character of the chaplain’s work or the chaplain’s religious allegiance.  Chaplains may find themselves obliged to endorse secular missions, such as nationalism or militarism, that run contrary to the chaplain’s religious mission.

The role of the chaplain and the social perception of chaplaincy in America have both changed significantly since World War II, Sullivan argues.  In the mid-twentieth century, patients, inmates, and soldiers imagined that chaplains had specific ministerial resources that were particular to each denomination, such that Catholic priests, for example, could offer services that no other denomination’s chaplains could.  Today, however, chaplaincy is far more generalized and less identified with any particular tradition.  Contemporary chaplains practice a “ministry of presence,” a stripped-down form of witness (to use a Christian word) that is a “suffering with” those seeking spiritual guidance.  Chaplains are trained to de-emphasize their individual religious identities so that they can provide a non-imposing, non-coercive presence, letting clients instead take the lead in terms of any religious specificity.

In her presentation, Sullivan observes the rise of credentialing as a major shift in chaplaincies during the 20th century.   Credentialing, rather than mere religious training, is now required in order to serve as a chaplain.  Would-be chaplains must earn a Master of Divinity degree, intern with a clinical pastoral education program, and obtain an ecclesiastical endorsement, all of which must be accredited or recognized by the government.  These cooperative efforts between state and religion have resulted in the standardization and professionalization of the chaplaincy.  Anyone can be a chaplain today, Sullivan argues.  It becomes a white collar job, one requiring expensive educational training and a lengthy apprenticeship.  As Randall Collins has argued, the credential becomes symbolic of one’s ability to do the actual work.

For chaplains who must serve a diverse clientele, including Roman Catholics, Wiccans, Southern Baptists, and atheists, specific denominational beliefs and practices, as well as religion itself, become “cultural resources” (to use James Beckford’s term).  Religion loses its claim to be sui generis, instead revealing itself to be socially constructed according to the practical needs of the moment when a client requests the services of a chaplain.  This offering of non-denominational spiritual advice to any and all seekers is illustrative of the secularization and commoditization of the chaplaincy.

But the process is not complete and, therefore, neither is Sullivan’s analysis.  Atheists and secular humanists may be consumers of chaplaincy services, but they are not yet permitted by the government to serve as chaplains in hospitals, prisons, or the military.  Even if the credentialing process in theory is open to any person, from whatever background, as Sullivan claims, this does not mean that anyone can become a chaplain in actual practice.  Groups such as the Military Association of Atheists and Freethinkers are seeking recognition by the Armed Forces Chaplains Board, but they have been unsuccessful so far.  That said, many prisons now include yoga and meditation groups, blurring the boundary between secular and religious practices and challenging the role of prison chaplains as exclusive brokers between the sacred and the secular.  And some higher education institutions, including Harvard, Rutgers, Stanford, Columbia, and American University, now incorporate humanist chaplaincies, responding to a growing call for guidance that is explicitly secular.

How might these humanist movements complicate Sullivan’s analysis?  Sullivan argues that in contemporary American jurisprudence religion has become a universal human phenomenon, albeit one that takes many forms.  But in the instances noted above, we see people who reject religion and yet who desire counseling and meaningful ritual during difficult times in their lives.  These people feel that they are not being best served by the supposedly secularized chaplains which Sullivan describes.  They want a chaplain with a particularly secular worldview rather than a naturalized non-denominational Protestantism which they perceive as coercive and not representative of their beliefs.  While Sullivan maintains that today’s chaplains are priests of the secular, actual secular people are excluded from the chaplaincy.

As Sullivan and other religious studies scholars complicate terms like religion and secularism, reducing these terms to near incoherence, and insist on the constant intermingling of the sacred and the secular, they leave jurists and legislators in a predicament with important practical consequences.  If religion and secularism are unstable and interpenetrating categories in American law, as Sullivan has argued, how can bureaucratic functionaries or judges justify excluding secular humanists from the chaplaincy?  Despite Sullivan’s claims about the naturalization of religion and the homogenization of the chaplaincy, American law still recognizes distinctions between what is religious and what is secular, and so do the people who consume and seek to provide chaplaincy services.

This material is disseminated under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. and can be distributed and utilised freely, provided full citation is given.

About the Author

Dusty Hoesly is a doctoral candidate in the Department of Religious Studies at the University of California, Santa Barbara, specializing in Religions of North America.  His research focuses on religion and irreligion in the American West, specifically the values held by people who self-describe as not religious, how those values developed, how they translate into social or political action, and how irreligious people interpret experiences that stand apart from ordinary life.  Incorporating fieldwork, surveys, and historical and material culture research, this project will help explain the growth of religious “nones” in the U.S. and reexamine the categories of sacred and secular in contemporary society.  Other research interests include religion in the American West, comparative secularisms, liberal evangelicalism, and religion and politics. He has previously published The Last Best Hope of Earth? Bron Taylor and the Limits of Dark Green Religion for the Religious Studies Project.

Bibliography

  • Collins, Randall. The Credential Society: A Historical Sociology of Education and Stratification. New York: Academic Press, 1979.
  • Sullivan, Winnifred Fallers. Paying the Words Extra: Religious Discourse in the Supreme Court of the United States. Cambridge, MA: Harvard University Press, 1994.
  • Sullivan, Winnifred Fallers. The Impossibility of Religious Freedom. Princeton, NJ: Princeton             University Press, 2009.
  • Sullivan, Winnifred Fallers. “We Are All Religious Now. Again.” Social Research 76.4 (2009): 1181-1198.
  • Sullivan, Winnifred Fallers. Prison Religion: Faith-Based Reform and the Constitution. Princeton, NJ: Princeton University Press, 2011.

Religion and the Law

Within modern American society the meme of a separation of Church and State exists without a doubt; however, there is very little evidence to actually prove that this separation exists, functions as such, or indeed that it ever existed. In the textbooks, popular news outlets and in the political arena religion is supposed to be wholly withheld-expelled in favor of majority rule. However, when we turn our attention to state-managed organizations such as the federal prisons or state forest services or support for military veterans, we find that the lines are blurred.

With an eye to this seemingly ironic phenomenon Winnifred F. Sullivan presented a lecture entitled “Ministries of Presence: Chaplains as Priests of the Secular” at Arizona State University as part of the ASU Center for Religion and Conflict’s lecture series. Excerpted from her upcoming book of the same title, Sullivan considers the oversight, regulation and licensure of religious chaplains within the American Veterans’ Administration, as well several other governmental and on-governmental institutions. In this interview with Chris Duncan (Arizona State University), the discussion centers predominantly on the world in which many chaplains come to find themselves due to a “new kind of religious universalism”; from having to be prepared to minister across the borders of their own religious traditions, as in the case of a Catholic chaplain being required to assist Jewish or otherwise non-Catholic practitioners in a federal prison or a chaplain working with the state of Maine Warden Service. Sullivan asks whether we really have a separation of the Church and the State, how do we insure that everyone’s religious needs are being met within secular institutions like the Veterans’ Administration, and how does the State license and approve of applicants to the chaplaincy- how does, should, could an ostensibly secular federal organization approve or disapprove of religious ministers within its ranks.

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Sullivan is the Department Chair and Professor of Religious Studies at Indiana University Bloomington as well as Affiliate Professor of Law in the Maurer School of Law at the same institution. She holds both a J.D. and a PhD. from the University of Chicago and is the author of  Paying the Words Extra: Religious Discourse in the Supreme Court of the United States (Harvard 1994), The Impossibility of Religious Freedom (Princeton 2005), and Prison Religion: Faith-Based Reform and the Constitution (Princeton 2009).