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State Funding for Religious Schools: What the US Supreme Court Should and Likely Will Do in its Espinoza decision

I thoroughly enjoyed the Religious Studies Project podcast on Espinoza v. Montana Department of Revenue and related cases.  The panelists and moderator did a skillful job of describing the complicated issues pertaining to First Amendment church/state concerns.  They covered several other important cases pertaining to religious exemptions, accommodations, and discrimination that could be the focus of my response, but I have decided to limit my comments to the Espinoza case before the Supreme Court and the Court’s likely reliance on Trinity Lutheran Church v. Comer (2017) in rendering its Espinoza decision.

Since the 1980s, the Supreme Court has become increasingly accommodationist toward religion in terms of allowing public funds to be used in sectarian schools.  In a number of cases, the Court has found no Establishment Clause violation in using public funds for services in religious schools.[1]  However, for the first time, in Trinity Lutheran, the Court ruled that there is a Free Exercise Clause entitlement to participate in a governmental program that is available to public entities.  Our panelists rightly noted that the Trinity Lutheran decision was somewhat narrow, focusing on whether a religious preschool program was entitled to compete for a state grant that was available to secular programs.  Trinity Lutheran did not involve the use of state money for the instructional program in private schools as vouchers and tax credit/scholarship programs do.  The Court may use Espinoza to extend the reach of the Free Exercise Clause.

Most states have constitutional provisions barring the use of public funds by religious institutions and prohibiting states from compelling citizens to support religion.  In fact, only three states, Louisiana, Maine, and North Carolina, have neither of these clauses.  While school voucher programs have generated some mixed judicial opinions, no state high court had struck down a tax credit/scholarship program until the 2018 Montana Supreme Court decision.[2]

The Supreme Court could narrowly affirm the Montana Supreme Court’s holding by ruling that Montana’s constitutional provision barring direct or indirect appropriations or payments to religious institutions is unique and more stringent than the wording of “no aid” clauses in most other state constitutions.  This point was made in the Espinoza majority opinion, even though many other states also have strict “no aid” provisions.  Such a ruling would have little precedential value and would leave intact other state high court decisions upholding tax credit programs.

 

Above, the seal of Montana’s Supreme Court. The seal includes the state’s motto: “Oro y plata”—Spanish for “silver and gold.”

A broader rationale to affirm the Montana high court would be for the U.S. Supreme Court to rely on its 2004 decision, Locke v. Davey, in ruling that states have discretion to enact stronger “no aid” provisions than demanded by the federal Establishment Clause.  This reasoning was widely supported until recently, but it was called into question by the Trinity Lutheran decision.  In essence, the Court could affirm that states can go further than the federal Establishment Clause in barring the use of public funds for religious purposes and institutions.

The broadest rationale to strike down the program would be for the Supreme Court to adopt the reasoning of the Espinoza concurring judges and rule that the Montana tax credit/scholarship program violates the First Amendment’s Establishment Clause as well as the Montana Constitution by endorsing/advancing religion.  An objective analysis of the intent of this clause and litigation through the 1970s supports this conclusion.  But considering the orientation of the current Supreme Court toward more religious accommodation, it is highly unlikely that a majority of the justices will take this position.

If the U.S. Supreme Court concludes that the tax credit/scholarship program is constitutionally permissible under the Montana and Federal Constitutions, which it probably will do, several rationales are also available for it to reverse the Montana Supreme Court.  It might conclude that the tax credit/scholarship program meets constitutional requirements because the money flows to religious schools only because of parents’ decisions to send their children to such schools, as it concluded in 2002 when it upheld a voucher program in Zelman v. Simmons-Harris.  In essence, the Court majority concluded that a program is constitutional if private – not government – decisions funnel public funds to sectarian institutions.  Or the Court could use the child benefit rationale in that the money is benefiting the children and not the religious institutions, as it has in several cases allowing public aid to support various services for children attending religious schools (e.g., Mitchell v. Helms, 2000).  The Court could further hold that the program is not subject to constitutional attack by taxpayers who have no standing because the credits are not yet in the state treasury, as it did in 2011 when it reviewed Arizona’s tax credit/scholarship program in Arizona School Christian Tuition Organization v. Winn.

The broadest rationale to reverse the Montana Supreme Court would be to rely on Trinity Lutheran in holding that parents have a Free Exercise right to participate in a public benefit. As asserted by the parents who challenged the rule excluding faith-based schools in the Montana tax credit/scholarship program.  If the Supreme Court reaches this conclusion, it would solidify that the Trinity Lutheran rationale negates “no aid” constitutional provisions across states and would conflict with some lower court rulings as well.  Whether all such decisions are now invalid was left slightly ajar in Trinity Lutheran, but the Court’s Espinoza decision could eliminate any lingering doubt.

The current Supreme Court is most likely to adopt the last option and reiterate the dominance of Free Exercise rights and thus firmly establish a hierarchy between the First Amendment’s religion clauses.  This goes against the historical understanding of the Establishment and Free Exercise Clauses in our nation.  Concurring Judge Sandefur declared in Espinoza that while the Establishment Clause provides an explicit prohibition on governmental action, “the Free Exercise clause is nothing more than a protective shield against government interference in the free exercise of a citizen’s chosen religion. . . . The Free Exercise Clause is not, nor did the Framers intend it to be, a sword of affirmative right to receive government aid” (435 P.3d at 624).  This widely supported stance no longer may be accurate, and the dominance of the Free Exercise Clause might be used in other cases for individuals to assert entitlements.  In the school context, staff members may claim a free exercise right to express their religious views in public schools, and students might assert a free exercise right to expression based on their religious beliefs that is hurtful to classmates (e.g., condemning homosexuality).  The national commitment to church/state separation, which has been the strongest in the school context, no longer may be assured.

A Supreme Court holding that the Free Exercise Clause entitles parents of private school students and the sectarian schools themselves to participate in tax credit/scholarship programs would have significant implications for the nature and structure of education in our nation.  Such a ruling would certainly provide an incentive for additional states to enact school choice measures that allow public funds to be used in sectarian schools.  It has been assumed in our nation that parents have a right to select private schooling for their children, but this does not mean the state must pay for such a choice.  This longstanding principle seems to be in jeopardy.

The United States was unique by including an anti-establishment provision in its constitution.  Many of the drafters were well aware of the hardships and bloodshed caused by religious persecution and discrimination resulting from co-mingling church and state.  It is imperative that we remain mindful about the dangers of church/state entanglement, especially in the school context, even when such involvement appears benign.  I applaud the Montana Supreme Court for its courageous decision that seems true to First Amendment precedent as well as to the concept of federalism that allows states to go beyond federal constitutional minimums in reserving public funds for public purposes.  However, I do not think the current U.S. Supreme Court will follow suit, so we may be entering a new era in church/state/school relations in our nation.

[1] This response is drawn in part from a longer article I wrote on tuition tax credit/scholarship programs, Martha McCarthy, Espinoza v. Montana Department of Revenue:  Tuition Tax Credits on Trial, Education Law Reporter, 365, 20-37 (2019).  Full citations for all topics and cases mentioned here can be found in that article.

[2] In basic voucher programs, parents are allocated a designated amount of state money that they can direct to the private school of their choice.  Tax credit/scholarship programs use money the taxpayer otherwise would owe in state taxes; in most of these programs, entities (e.g., student tuition organizations) collect the credits and distribute the scholarships, which a specific STO can confine to particular groups of private schools.

 

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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The Politics of Religious Freedom and the Criminalization of Blackness

Written by Alexander Rocklin in response to a podcast by Tisa Wenger interviewed by David Robertson

     There are ghosts haunting religious freedom. I was at a panel at the National Archives of Trinidad and Tobago, celebrating 50 years since the repeal of anti-“shouting” legislation in that country. The repeal ended the effective outlawing of the practice of the “shouters,” today called the Spiritual Baptist faith. At the event, Spiritual Baptist Bishop Ray Brathwaite, who described the movement as an Afro-centric Christian faith, drew parallels between the Spiritual Baptists and Afro-Atlantic religions in Brazil, Cuba, and Haiti, arguing that they shared the same “template.”

     In the southern Caribbean islands of Trinidad and Tobago and St. Vincent, beginning in the early 20th century, anti-shaking and shouting laws criminalized the gatherings of various independent Afro-Christian groups (many of them emerging from slaves’ and their free descendants’ reimaginings and recombinations of Methodist and Baptist, African-derived and inspired, and translocal esoteric traditions). Most typically, these groups put emphasis on faith in God, Jesus, and the Holy Spirit, baptism, a vision-seeking practice of seclusion called mourning, and the embodiment of spirits from a network of spirit nations that includes Africa, India, China, and the Middle East. Brathwaite’s talk on the Spiritual Baptists’ history in part focused on what he described as the millions of ghosts of dead slaves who haunt the Americas and the slave coast of Africa.

     Bishop Brathwaite put the Spiritual Baptists’ struggles for religious freedom and government recognition in the larger context of the history of the dehumanization and violence of slavery and the racism of colonial and post-colonial rule. Brathwaite described how, a few years before on Spiritual Baptist/Shouter Liberation Day, the national holiday marking the ending of the “shouting” ban, his group had been inspired by God to go to the Queen’s Park Savannah, the central park in the capital city of Port of Spain, to hold a service of celebration. This was an opportunity for a once actively persecuted group to mark their hard-won religious freedom in the heart of the twin island nation.

     Before the commemoration could begin, though, as is typical for Spiritual Baptist gatherings, they had to purify the area, in order to move off the spirits who dwelled there, so that they would not manifest or “possess” the participants, interfering with the ceremony. The bishop estimated that normally it should have taken about a half an hour to do such a purification. Instead it ended up taking them three hours. Brathwaite explained that this was so because of the large number of spirits of African slaves who dwelled at the Savannah, the site of a former slave plantation and public thoroughfare used for the display of executed slaves.

     Bishop Brathwaite’s story points out to us the degree to which the ghostly histories of enslaved and colonized peoples continue to haunt the present from the graves of colonial infrastructures and through repurposed modes of colonial regulation. We can include in this the category of religion and its promised freedom as sites for such hauntings as well (both from the perspective of metaphorical and critical hauntology). In her interview, Tisa Wenger discusses the politics of the category religion as a colonial imposition and points us to the ways in which arguments over religious freedom play an important role in processes of religion-making, in the shaping of what gets to count as religion and what has been marginalized or outlawed as not-religion.

            The interviewer David Robertson mentioned the world-religionization of Hinduism and, connected to this, Wenger pointed out the fact that Indigenous traditions have typically not been constructed as “world religions” in the same way. In the British Caribbean, Indian indentured laborers, brought from South Asia to work in sugarcane fields, were promised the freedom to practice their religions (though all aspects of their lives, including what was understood to be their religions, were highly regulated by a violent and racist colonial regime). In Trinidad, both the colonizers and the colonized Indian laborers together, in a complex unequal exchange, constructed and argued over Hinduism and Islam as so-called world religions in order to help meet or deny religious freedom’s promised ideal. But although the British empire held out the ideal of freedom of religion for its colonial subjects, Afro-Caribbean traditions were almost never been given such considerations.

     The denial of the status of religion became a dehumanizing justification for the enslavement, colonization, and repression of peoples of African descent around the globe, a denial that still haunts the category of religion. The weight of slavery’s violence and racism has affected how Afro-Caribbean communities and their traditions were (and still are) categorized after slavery’s end. Although the interview did not have time to fully delve into questions of race, Wenger pointed listeners to the ways in which race and religion are co-constituted. Race-making and religion-making are wholly intertwined processes, with Africanity and blackness often disqualifying features for a social formation’s inclusion under the umbrella of religion. Instead colonial officials most often situated them among one of religion’s despised others such as superstition, barbarism, or obeah (a category used in laws forbidding “African witchcraft” or “the assumption of supernatural powers”). In other words, freedom has its limits, and those limits are racialized and racializing.

     In order for communities and their practices to count as religion, they had to meet colonial regimes’ norms for appropriate social life and full humanity, including norms for religion and race. An editorialist, quoted in Trinidad and Tobago’s Port of Spain Gazette in September 1939, railing against a proposal to repeal the anti-Shaker law on the island of St. Vincent, wrote:

 Here is obviously another case of a misguided idea of the meaning and limits of liberty and freedom: not without reason did a certain writer exclaim, ‘Oh Liberty! how many crimes have been committed in thy name.’ […] The Government is to be asked to grant to a section of the population [the “Shakers”] the right to indulge in practices which tend to exercise a pernicious and demoralising effect upon the inhabitants.

     Called a survival of African barbarism, a sect, or obeah, such groups of poor, black Christians, outside of the control of white church institutions, engaging in practices of late-night meetings with singing and bell ringing, speaking in tongues, and catching power (or embodying spirits or the Spirit, something considered licentious or “demoralizing” by colonizers), went against elite Protestant and Catholic norms for race, religion, class, and sexuality. However, when quizzed by curious anthropologists or grilled on the stand in court, such so-called shouters and shakers tended to emphasize “normal” practices that met colonial ideals for religion and asserted their rights to freedom in the Empire as practitioners of true Christianity. To quote the title of Wenger’s first book, they declared “We have a religion!” The institution of religious freedom involved the imposition of a set of norms that had to be incorporated and that became the ground for any claims to freedom. The Spiritual Baptists engaged in religion-making, adopting and strategically redeploying the colonial discourse on religion. And their hard struggles for freedom eventually led to the repeal of the bans.

     However, their struggle for recognition has continues  after the end of colonial rule. Just this past spring, Trinidad and Tobago’s Prime Minister Dr. Keith Rowley discussed delivering on long-promised government land grants for a Spiritual Baptist Cathedral, bringing about a measure of equality to a group not historically given the same access to government largess as other recognized religious institutions on the two islands. The slow pace of recognition must in part be traced to the fact that the Spiritual Baptists are a stigmatized community even today, still considered beyond the pale of religion. This is so at least in part because their practices go against elite Christian norms, but also because of their Africanity (something both celebrated and decried).

     When living in Trinidad, I was occasionally awakened in the middle of the night by singing and bell ringing from the Spiritual Baptist temple next door to my apartment. When I asked other neighbors about what had been going on, non-Baptists warned me to be careful of temple members because they might work obeah or “black magic” on me. But, during a group discussion about the hostility coming from outside their community, a Spiritual Baptist friend, who summons and embodies entities from the spiritual land of Africa, had his supporters read out Psalm 100, “Make a joyful noise unto the LORD, all ye lands,” and sing God’s praises even louder.

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/

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Against Freedom: A Response to Finbarr Curtis

Finbarr Curtis’s recent book, The Production of American Religious Freedom (2016), defies easy categorization. Melding social theory, interpretive biography, revisionist intellectual history, literary analysis, film analysis, and the study of discourse and rhetoric, the book issues a much needed social constructionist inquiry into the largely taken-for-granted concept of “freedom” that circulates in conversations about Americanness and religiosity.

In his interview with Brad Stoddard for the Religious Studies Project (RSP), Curtis describes his volume of case studies that span some 200 years of American history. The case studies correlate with the book’s eight chapters, including essays on either individuals (Charles Grandison Finney, Louisa May Alcott, William Jennings Bryan, D. W. Griffith, Al Smith, and Malcom X), theories of science (Intelligent Design), or legal rulings (Burwell v. Hobby Lobby). Early reviews of The Production have described the book as lacking a guiding thesis. But in Curtis’s own framing, and as stipulated in the introduction, “This book argues that there is no such thing as religious freedom, or at least no one thing.” Religious freedom “is a malleable rhetoric employed for a variety of purposes” (2016: 2).

Curtis advances an argument, but one framed as a definite negative. Corralling the eight stand-alone essays into conversation with one another, the thesis of the book is that no coherent or identifiable “religious freedom” exists in a singular sense. Freedom is a highly contested category of American discourse. Curtis astutely makes his case, weaving together studies of revivalist technique, character development in fictional narratives, populist rhetoric laced with racist undertones, filmic explorations mournful of white victimization, shrewd Catholic politicians in a Protestant arena, black activist rejection of American liberalism. He also examines alternative philosophies of science that exploit secular distinctions between scientific and religious truths, between public and private, and tactical sacralizations of both corporations and property in effort to normalize moral preferences.

As important as the book is, some readers may find The Production’s data selection somewhat arbitrary. The book showcases eight compelling microstudies. Indeed, the historical protagonists of The Production’s disparate narratives were formidably influential cultural figures. But Curtis cautions readers from imagining that the studies “tell the whole story of American religious freedom.” He continues (5): “The selected case studies do not offer a balanced, exhaustive, or inclusive coverage of American history.”

Curtis’s choices of study intend simply “to highlight different conceptual problems in the study of religion.” Fair enough. But why these particular orators, novelists, preachers, activists, and politicians? Why not others? Why a Finney, Alcott, or Malcom X and not a Joseph Smith, Aimee Semple McPherson, Annie Dillard, or Ta Nehisi Coates? The brilliance of these RSP podcasts is that the scholar-author interview platform serves as a behind-the-scenes snapshot of academic production. RSP interviews helpfully extend, clarify, or nuance research projects as well as plot books and publications within their own genealogies of development. In his discussion with Stoddard, Curtis confirms the arbitrariness of his foci, providing a fascinating window into the history of the production of The Production itself. Taken together, the case studies “do not add up,” Curtis expresses. “The center does not hold.”

No guiding logic determined the data selection as he wrote the chapters individually and over an extended period of time. Nonetheless, some readers will want to hold the author’s feet to the fire and to press him to more thoroughly defend why the cases are important and what they say about America when brought together. The chapters are, after all, published in one volume and under a unifying title. Borrowing Jonathan Z. Smith’s phrasing, we might ask Curtis, “why ‘this’ rather than ‘that’ was chosen as an exemplum” or to articulate in a more sustained manner how these specific examples “serve as exempli gratia” (Smith 1982: xi) of the issue of religious freedom in America. As academic works go, the book is not a lengthy one. Might it have been one, two, or four chapters longer? Might it have been shorter? What other conceptions of freedom are in circulation?

On the chameleonic construct of religious freedom, Curtis rejects “any one explanation for how religious freedom works” and instead documents “how freedom has been contested, challenged, and transformed” (5). He challenges the “underlying epistemic unity” guiding the analyses of Americanist historians such as Tracy Fessenden (2007) and John Lardas Modern (2011). Instead, Curtis counters, religious freedom is “something fragmented, in tension, and under duress” (6). Yet, the emphasis on the contested and fragmentary status of so-called free selves in The Production also evidences a significant tension.

In its analysis of “not fully formed persons” (6) who are shaped, socialized, and cultivated by leaders, publics, ideas, social forces, religions, institutions, and collectives, the book is a decidedly Foucaultian project. Curtis’s depiction of religious freedom as emerging from conflicting, disparate sources makes sense in light of Michel Foucault’s model of power as dispersed, diffused, non-binary, and multidirectional (see esp. 1990: 92-96). The author’s emphasis on contestation and disintegration will be unsatisfying for readers who prefer black-and-white conclusions. The Production does not feign to identify discrete bastions of power or clear-cut social hierarchies in terms of dominance and hegemony.

On this issue, the point about other circulating discourses about religious freedom—i.e., those voices not included in Curtis’s collection of essays—is not tangential. Might the addition of other discourses change the contour of the book as a whole? Would the inclusion of additional perspectives on freedom have evidenced any sort of overlap, similarity, or center, thus challenging the book’s thesis of fragmentation? If one were to expand Curtis’s data set and to think in terms of cohesion of agendas and goals, would a dominant perspective on religious freedom emerge? Cannot even fractured ideological positions suspend differences of opinion in colluding to affect political change? I concede that conflict exists “all the way down,” as Curtis adroitly puts the matter in the interview, but am also interested in how competing narratives might play down difference in order to accomplish certain types of social, political, religious, and economic goals. We do get hints of this, such as in the collusion between evangelicals and Catholics in the Hobby Lobby chapter, but not overt theorization. My question to Curtis would be whether or not loosely bounded “centers” or even “publics” can emerge over time or via discursive circulation, regardless of their internally dialogic productions and contested constitutions.

In short, The Production is a stimulating, provocative contribution and required reading not only the book’s most immediate audience, Americanists in Religious Studies, but anyone interested in the subjects of social theory, human agency and constraint, religion, freedom, the reconfiguration of public and private domains, individuals and collectives, the formation of ethical selves, race and racism, literary and filmic production, economies of contestation, secularism, and American culture. I, for one, plan on assigning it in the next American Religions course I teach.

References

Curtis, Finbarr. 2016. The Production of American Religious Freedom. New York: New York University Press.

Fessenden, Tracy. 2007. Culture and Redemption: Religion, the Secular, and Literature. Princeton: Princeton University Press.

Foucault, Michel. 1990. The History of Sexuality, Volume I: An Introduction. New York: Vintage Books.

Modern, John Lardas. 2011. Secularism in Antebellum America. Chicago: University of Chicago Press.

Smith, Jonathan Z. 1982. Imagining Religion: From Babylon to Jonestown. Chicago: University of Chicago Press.

Religious Freedom in America: Theoretical Considerations

6a00d83451bab869e200e54f730ca48833-800wiReligious freedom is an inherently good thing, right? It’s a cherished idea that is easy for state governments to enact, no? In this interview, Finbarr Curtis questions both of these assertions. In The Production of American Religious Freedom, Curtis argues that religious freedom is a fluent and malleable concept that people deploy for various and competing reasons. Curtis uses several case studies to illustrate how the rhetoric of religious freedom has no coherent logic. This discussion has both legal and political implications, as it concludes that one of modernity’s most important concepts—religious freedom—is both unobtainable and undesirable.

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, apple pie, and more.

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


Podcasts

State Funding for Religious Schools: What the US Supreme Court Should and Likely Will Do in its Espinoza decision

I thoroughly enjoyed the Religious Studies Project podcast on Espinoza v. Montana Department of Revenue and related cases.  The panelists and moderator did a skillful job of describing the complicated issues pertaining to First Amendment church/state concerns.  They covered several other important cases pertaining to religious exemptions, accommodations, and discrimination that could be the focus of my response, but I have decided to limit my comments to the Espinoza case before the Supreme Court and the Court’s likely reliance on Trinity Lutheran Church v. Comer (2017) in rendering its Espinoza decision.

Since the 1980s, the Supreme Court has become increasingly accommodationist toward religion in terms of allowing public funds to be used in sectarian schools.  In a number of cases, the Court has found no Establishment Clause violation in using public funds for services in religious schools.[1]  However, for the first time, in Trinity Lutheran, the Court ruled that there is a Free Exercise Clause entitlement to participate in a governmental program that is available to public entities.  Our panelists rightly noted that the Trinity Lutheran decision was somewhat narrow, focusing on whether a religious preschool program was entitled to compete for a state grant that was available to secular programs.  Trinity Lutheran did not involve the use of state money for the instructional program in private schools as vouchers and tax credit/scholarship programs do.  The Court may use Espinoza to extend the reach of the Free Exercise Clause.

Most states have constitutional provisions barring the use of public funds by religious institutions and prohibiting states from compelling citizens to support religion.  In fact, only three states, Louisiana, Maine, and North Carolina, have neither of these clauses.  While school voucher programs have generated some mixed judicial opinions, no state high court had struck down a tax credit/scholarship program until the 2018 Montana Supreme Court decision.[2]

The Supreme Court could narrowly affirm the Montana Supreme Court’s holding by ruling that Montana’s constitutional provision barring direct or indirect appropriations or payments to religious institutions is unique and more stringent than the wording of “no aid” clauses in most other state constitutions.  This point was made in the Espinoza majority opinion, even though many other states also have strict “no aid” provisions.  Such a ruling would have little precedential value and would leave intact other state high court decisions upholding tax credit programs.

 

Above, the seal of Montana’s Supreme Court. The seal includes the state’s motto: “Oro y plata”—Spanish for “silver and gold.”

A broader rationale to affirm the Montana high court would be for the U.S. Supreme Court to rely on its 2004 decision, Locke v. Davey, in ruling that states have discretion to enact stronger “no aid” provisions than demanded by the federal Establishment Clause.  This reasoning was widely supported until recently, but it was called into question by the Trinity Lutheran decision.  In essence, the Court could affirm that states can go further than the federal Establishment Clause in barring the use of public funds for religious purposes and institutions.

The broadest rationale to strike down the program would be for the Supreme Court to adopt the reasoning of the Espinoza concurring judges and rule that the Montana tax credit/scholarship program violates the First Amendment’s Establishment Clause as well as the Montana Constitution by endorsing/advancing religion.  An objective analysis of the intent of this clause and litigation through the 1970s supports this conclusion.  But considering the orientation of the current Supreme Court toward more religious accommodation, it is highly unlikely that a majority of the justices will take this position.

If the U.S. Supreme Court concludes that the tax credit/scholarship program is constitutionally permissible under the Montana and Federal Constitutions, which it probably will do, several rationales are also available for it to reverse the Montana Supreme Court.  It might conclude that the tax credit/scholarship program meets constitutional requirements because the money flows to religious schools only because of parents’ decisions to send their children to such schools, as it concluded in 2002 when it upheld a voucher program in Zelman v. Simmons-Harris.  In essence, the Court majority concluded that a program is constitutional if private – not government – decisions funnel public funds to sectarian institutions.  Or the Court could use the child benefit rationale in that the money is benefiting the children and not the religious institutions, as it has in several cases allowing public aid to support various services for children attending religious schools (e.g., Mitchell v. Helms, 2000).  The Court could further hold that the program is not subject to constitutional attack by taxpayers who have no standing because the credits are not yet in the state treasury, as it did in 2011 when it reviewed Arizona’s tax credit/scholarship program in Arizona School Christian Tuition Organization v. Winn.

The broadest rationale to reverse the Montana Supreme Court would be to rely on Trinity Lutheran in holding that parents have a Free Exercise right to participate in a public benefit. As asserted by the parents who challenged the rule excluding faith-based schools in the Montana tax credit/scholarship program.  If the Supreme Court reaches this conclusion, it would solidify that the Trinity Lutheran rationale negates “no aid” constitutional provisions across states and would conflict with some lower court rulings as well.  Whether all such decisions are now invalid was left slightly ajar in Trinity Lutheran, but the Court’s Espinoza decision could eliminate any lingering doubt.

The current Supreme Court is most likely to adopt the last option and reiterate the dominance of Free Exercise rights and thus firmly establish a hierarchy between the First Amendment’s religion clauses.  This goes against the historical understanding of the Establishment and Free Exercise Clauses in our nation.  Concurring Judge Sandefur declared in Espinoza that while the Establishment Clause provides an explicit prohibition on governmental action, “the Free Exercise clause is nothing more than a protective shield against government interference in the free exercise of a citizen’s chosen religion. . . . The Free Exercise Clause is not, nor did the Framers intend it to be, a sword of affirmative right to receive government aid” (435 P.3d at 624).  This widely supported stance no longer may be accurate, and the dominance of the Free Exercise Clause might be used in other cases for individuals to assert entitlements.  In the school context, staff members may claim a free exercise right to express their religious views in public schools, and students might assert a free exercise right to expression based on their religious beliefs that is hurtful to classmates (e.g., condemning homosexuality).  The national commitment to church/state separation, which has been the strongest in the school context, no longer may be assured.

A Supreme Court holding that the Free Exercise Clause entitles parents of private school students and the sectarian schools themselves to participate in tax credit/scholarship programs would have significant implications for the nature and structure of education in our nation.  Such a ruling would certainly provide an incentive for additional states to enact school choice measures that allow public funds to be used in sectarian schools.  It has been assumed in our nation that parents have a right to select private schooling for their children, but this does not mean the state must pay for such a choice.  This longstanding principle seems to be in jeopardy.

The United States was unique by including an anti-establishment provision in its constitution.  Many of the drafters were well aware of the hardships and bloodshed caused by religious persecution and discrimination resulting from co-mingling church and state.  It is imperative that we remain mindful about the dangers of church/state entanglement, especially in the school context, even when such involvement appears benign.  I applaud the Montana Supreme Court for its courageous decision that seems true to First Amendment precedent as well as to the concept of federalism that allows states to go beyond federal constitutional minimums in reserving public funds for public purposes.  However, I do not think the current U.S. Supreme Court will follow suit, so we may be entering a new era in church/state/school relations in our nation.

[1] This response is drawn in part from a longer article I wrote on tuition tax credit/scholarship programs, Martha McCarthy, Espinoza v. Montana Department of Revenue:  Tuition Tax Credits on Trial, Education Law Reporter, 365, 20-37 (2019).  Full citations for all topics and cases mentioned here can be found in that article.

[2] In basic voucher programs, parents are allocated a designated amount of state money that they can direct to the private school of their choice.  Tax credit/scholarship programs use money the taxpayer otherwise would owe in state taxes; in most of these programs, entities (e.g., student tuition organizations) collect the credits and distribute the scholarships, which a specific STO can confine to particular groups of private schools.

 

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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The Politics of Religious Freedom and the Criminalization of Blackness

Written by Alexander Rocklin in response to a podcast by Tisa Wenger interviewed by David Robertson

     There are ghosts haunting religious freedom. I was at a panel at the National Archives of Trinidad and Tobago, celebrating 50 years since the repeal of anti-“shouting” legislation in that country. The repeal ended the effective outlawing of the practice of the “shouters,” today called the Spiritual Baptist faith. At the event, Spiritual Baptist Bishop Ray Brathwaite, who described the movement as an Afro-centric Christian faith, drew parallels between the Spiritual Baptists and Afro-Atlantic religions in Brazil, Cuba, and Haiti, arguing that they shared the same “template.”

     In the southern Caribbean islands of Trinidad and Tobago and St. Vincent, beginning in the early 20th century, anti-shaking and shouting laws criminalized the gatherings of various independent Afro-Christian groups (many of them emerging from slaves’ and their free descendants’ reimaginings and recombinations of Methodist and Baptist, African-derived and inspired, and translocal esoteric traditions). Most typically, these groups put emphasis on faith in God, Jesus, and the Holy Spirit, baptism, a vision-seeking practice of seclusion called mourning, and the embodiment of spirits from a network of spirit nations that includes Africa, India, China, and the Middle East. Brathwaite’s talk on the Spiritual Baptists’ history in part focused on what he described as the millions of ghosts of dead slaves who haunt the Americas and the slave coast of Africa.

     Bishop Brathwaite put the Spiritual Baptists’ struggles for religious freedom and government recognition in the larger context of the history of the dehumanization and violence of slavery and the racism of colonial and post-colonial rule. Brathwaite described how, a few years before on Spiritual Baptist/Shouter Liberation Day, the national holiday marking the ending of the “shouting” ban, his group had been inspired by God to go to the Queen’s Park Savannah, the central park in the capital city of Port of Spain, to hold a service of celebration. This was an opportunity for a once actively persecuted group to mark their hard-won religious freedom in the heart of the twin island nation.

     Before the commemoration could begin, though, as is typical for Spiritual Baptist gatherings, they had to purify the area, in order to move off the spirits who dwelled there, so that they would not manifest or “possess” the participants, interfering with the ceremony. The bishop estimated that normally it should have taken about a half an hour to do such a purification. Instead it ended up taking them three hours. Brathwaite explained that this was so because of the large number of spirits of African slaves who dwelled at the Savannah, the site of a former slave plantation and public thoroughfare used for the display of executed slaves.

     Bishop Brathwaite’s story points out to us the degree to which the ghostly histories of enslaved and colonized peoples continue to haunt the present from the graves of colonial infrastructures and through repurposed modes of colonial regulation. We can include in this the category of religion and its promised freedom as sites for such hauntings as well (both from the perspective of metaphorical and critical hauntology). In her interview, Tisa Wenger discusses the politics of the category religion as a colonial imposition and points us to the ways in which arguments over religious freedom play an important role in processes of religion-making, in the shaping of what gets to count as religion and what has been marginalized or outlawed as not-religion.

            The interviewer David Robertson mentioned the world-religionization of Hinduism and, connected to this, Wenger pointed out the fact that Indigenous traditions have typically not been constructed as “world religions” in the same way. In the British Caribbean, Indian indentured laborers, brought from South Asia to work in sugarcane fields, were promised the freedom to practice their religions (though all aspects of their lives, including what was understood to be their religions, were highly regulated by a violent and racist colonial regime). In Trinidad, both the colonizers and the colonized Indian laborers together, in a complex unequal exchange, constructed and argued over Hinduism and Islam as so-called world religions in order to help meet or deny religious freedom’s promised ideal. But although the British empire held out the ideal of freedom of religion for its colonial subjects, Afro-Caribbean traditions were almost never been given such considerations.

     The denial of the status of religion became a dehumanizing justification for the enslavement, colonization, and repression of peoples of African descent around the globe, a denial that still haunts the category of religion. The weight of slavery’s violence and racism has affected how Afro-Caribbean communities and their traditions were (and still are) categorized after slavery’s end. Although the interview did not have time to fully delve into questions of race, Wenger pointed listeners to the ways in which race and religion are co-constituted. Race-making and religion-making are wholly intertwined processes, with Africanity and blackness often disqualifying features for a social formation’s inclusion under the umbrella of religion. Instead colonial officials most often situated them among one of religion’s despised others such as superstition, barbarism, or obeah (a category used in laws forbidding “African witchcraft” or “the assumption of supernatural powers”). In other words, freedom has its limits, and those limits are racialized and racializing.

     In order for communities and their practices to count as religion, they had to meet colonial regimes’ norms for appropriate social life and full humanity, including norms for religion and race. An editorialist, quoted in Trinidad and Tobago’s Port of Spain Gazette in September 1939, railing against a proposal to repeal the anti-Shaker law on the island of St. Vincent, wrote:

 Here is obviously another case of a misguided idea of the meaning and limits of liberty and freedom: not without reason did a certain writer exclaim, ‘Oh Liberty! how many crimes have been committed in thy name.’ […] The Government is to be asked to grant to a section of the population [the “Shakers”] the right to indulge in practices which tend to exercise a pernicious and demoralising effect upon the inhabitants.

     Called a survival of African barbarism, a sect, or obeah, such groups of poor, black Christians, outside of the control of white church institutions, engaging in practices of late-night meetings with singing and bell ringing, speaking in tongues, and catching power (or embodying spirits or the Spirit, something considered licentious or “demoralizing” by colonizers), went against elite Protestant and Catholic norms for race, religion, class, and sexuality. However, when quizzed by curious anthropologists or grilled on the stand in court, such so-called shouters and shakers tended to emphasize “normal” practices that met colonial ideals for religion and asserted their rights to freedom in the Empire as practitioners of true Christianity. To quote the title of Wenger’s first book, they declared “We have a religion!” The institution of religious freedom involved the imposition of a set of norms that had to be incorporated and that became the ground for any claims to freedom. The Spiritual Baptists engaged in religion-making, adopting and strategically redeploying the colonial discourse on religion. And their hard struggles for freedom eventually led to the repeal of the bans.

     However, their struggle for recognition has continues  after the end of colonial rule. Just this past spring, Trinidad and Tobago’s Prime Minister Dr. Keith Rowley discussed delivering on long-promised government land grants for a Spiritual Baptist Cathedral, bringing about a measure of equality to a group not historically given the same access to government largess as other recognized religious institutions on the two islands. The slow pace of recognition must in part be traced to the fact that the Spiritual Baptists are a stigmatized community even today, still considered beyond the pale of religion. This is so at least in part because their practices go against elite Christian norms, but also because of their Africanity (something both celebrated and decried).

     When living in Trinidad, I was occasionally awakened in the middle of the night by singing and bell ringing from the Spiritual Baptist temple next door to my apartment. When I asked other neighbors about what had been going on, non-Baptists warned me to be careful of temple members because they might work obeah or “black magic” on me. But, during a group discussion about the hostility coming from outside their community, a Spiritual Baptist friend, who summons and embodies entities from the spiritual land of Africa, had his supporters read out Psalm 100, “Make a joyful noise unto the LORD, all ye lands,” and sing God’s praises even louder.

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.

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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/

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Against Freedom: A Response to Finbarr Curtis

Finbarr Curtis’s recent book, The Production of American Religious Freedom (2016), defies easy categorization. Melding social theory, interpretive biography, revisionist intellectual history, literary analysis, film analysis, and the study of discourse and rhetoric, the book issues a much needed social constructionist inquiry into the largely taken-for-granted concept of “freedom” that circulates in conversations about Americanness and religiosity.

In his interview with Brad Stoddard for the Religious Studies Project (RSP), Curtis describes his volume of case studies that span some 200 years of American history. The case studies correlate with the book’s eight chapters, including essays on either individuals (Charles Grandison Finney, Louisa May Alcott, William Jennings Bryan, D. W. Griffith, Al Smith, and Malcom X), theories of science (Intelligent Design), or legal rulings (Burwell v. Hobby Lobby). Early reviews of The Production have described the book as lacking a guiding thesis. But in Curtis’s own framing, and as stipulated in the introduction, “This book argues that there is no such thing as religious freedom, or at least no one thing.” Religious freedom “is a malleable rhetoric employed for a variety of purposes” (2016: 2).

Curtis advances an argument, but one framed as a definite negative. Corralling the eight stand-alone essays into conversation with one another, the thesis of the book is that no coherent or identifiable “religious freedom” exists in a singular sense. Freedom is a highly contested category of American discourse. Curtis astutely makes his case, weaving together studies of revivalist technique, character development in fictional narratives, populist rhetoric laced with racist undertones, filmic explorations mournful of white victimization, shrewd Catholic politicians in a Protestant arena, black activist rejection of American liberalism. He also examines alternative philosophies of science that exploit secular distinctions between scientific and religious truths, between public and private, and tactical sacralizations of both corporations and property in effort to normalize moral preferences.

As important as the book is, some readers may find The Production’s data selection somewhat arbitrary. The book showcases eight compelling microstudies. Indeed, the historical protagonists of The Production’s disparate narratives were formidably influential cultural figures. But Curtis cautions readers from imagining that the studies “tell the whole story of American religious freedom.” He continues (5): “The selected case studies do not offer a balanced, exhaustive, or inclusive coverage of American history.”

Curtis’s choices of study intend simply “to highlight different conceptual problems in the study of religion.” Fair enough. But why these particular orators, novelists, preachers, activists, and politicians? Why not others? Why a Finney, Alcott, or Malcom X and not a Joseph Smith, Aimee Semple McPherson, Annie Dillard, or Ta Nehisi Coates? The brilliance of these RSP podcasts is that the scholar-author interview platform serves as a behind-the-scenes snapshot of academic production. RSP interviews helpfully extend, clarify, or nuance research projects as well as plot books and publications within their own genealogies of development. In his discussion with Stoddard, Curtis confirms the arbitrariness of his foci, providing a fascinating window into the history of the production of The Production itself. Taken together, the case studies “do not add up,” Curtis expresses. “The center does not hold.”

No guiding logic determined the data selection as he wrote the chapters individually and over an extended period of time. Nonetheless, some readers will want to hold the author’s feet to the fire and to press him to more thoroughly defend why the cases are important and what they say about America when brought together. The chapters are, after all, published in one volume and under a unifying title. Borrowing Jonathan Z. Smith’s phrasing, we might ask Curtis, “why ‘this’ rather than ‘that’ was chosen as an exemplum” or to articulate in a more sustained manner how these specific examples “serve as exempli gratia” (Smith 1982: xi) of the issue of religious freedom in America. As academic works go, the book is not a lengthy one. Might it have been one, two, or four chapters longer? Might it have been shorter? What other conceptions of freedom are in circulation?

On the chameleonic construct of religious freedom, Curtis rejects “any one explanation for how religious freedom works” and instead documents “how freedom has been contested, challenged, and transformed” (5). He challenges the “underlying epistemic unity” guiding the analyses of Americanist historians such as Tracy Fessenden (2007) and John Lardas Modern (2011). Instead, Curtis counters, religious freedom is “something fragmented, in tension, and under duress” (6). Yet, the emphasis on the contested and fragmentary status of so-called free selves in The Production also evidences a significant tension.

In its analysis of “not fully formed persons” (6) who are shaped, socialized, and cultivated by leaders, publics, ideas, social forces, religions, institutions, and collectives, the book is a decidedly Foucaultian project. Curtis’s depiction of religious freedom as emerging from conflicting, disparate sources makes sense in light of Michel Foucault’s model of power as dispersed, diffused, non-binary, and multidirectional (see esp. 1990: 92-96). The author’s emphasis on contestation and disintegration will be unsatisfying for readers who prefer black-and-white conclusions. The Production does not feign to identify discrete bastions of power or clear-cut social hierarchies in terms of dominance and hegemony.

On this issue, the point about other circulating discourses about religious freedom—i.e., those voices not included in Curtis’s collection of essays—is not tangential. Might the addition of other discourses change the contour of the book as a whole? Would the inclusion of additional perspectives on freedom have evidenced any sort of overlap, similarity, or center, thus challenging the book’s thesis of fragmentation? If one were to expand Curtis’s data set and to think in terms of cohesion of agendas and goals, would a dominant perspective on religious freedom emerge? Cannot even fractured ideological positions suspend differences of opinion in colluding to affect political change? I concede that conflict exists “all the way down,” as Curtis adroitly puts the matter in the interview, but am also interested in how competing narratives might play down difference in order to accomplish certain types of social, political, religious, and economic goals. We do get hints of this, such as in the collusion between evangelicals and Catholics in the Hobby Lobby chapter, but not overt theorization. My question to Curtis would be whether or not loosely bounded “centers” or even “publics” can emerge over time or via discursive circulation, regardless of their internally dialogic productions and contested constitutions.

In short, The Production is a stimulating, provocative contribution and required reading not only the book’s most immediate audience, Americanists in Religious Studies, but anyone interested in the subjects of social theory, human agency and constraint, religion, freedom, the reconfiguration of public and private domains, individuals and collectives, the formation of ethical selves, race and racism, literary and filmic production, economies of contestation, secularism, and American culture. I, for one, plan on assigning it in the next American Religions course I teach.

References

Curtis, Finbarr. 2016. The Production of American Religious Freedom. New York: New York University Press.

Fessenden, Tracy. 2007. Culture and Redemption: Religion, the Secular, and Literature. Princeton: Princeton University Press.

Foucault, Michel. 1990. The History of Sexuality, Volume I: An Introduction. New York: Vintage Books.

Modern, John Lardas. 2011. Secularism in Antebellum America. Chicago: University of Chicago Press.

Smith, Jonathan Z. 1982. Imagining Religion: From Babylon to Jonestown. Chicago: University of Chicago Press.

Religious Freedom in America: Theoretical Considerations

6a00d83451bab869e200e54f730ca48833-800wiReligious freedom is an inherently good thing, right? It’s a cherished idea that is easy for state governments to enact, no? In this interview, Finbarr Curtis questions both of these assertions. In The Production of American Religious Freedom, Curtis argues that religious freedom is a fluent and malleable concept that people deploy for various and competing reasons. Curtis uses several case studies to illustrate how the rhetoric of religious freedom has no coherent logic. This discussion has both legal and political implications, as it concludes that one of modernity’s most important concepts—religious freedom—is both unobtainable and undesirable.

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