What gave me pause in the first place was Winnifred Fallers Sullivan's book The Impossibility of Religious Freedom (Princeton, 2005). Sullivan bases her argument on a single 1998 case, Warner v. Boca Raton, in which
a group of Florida residents ... sought to prevent the forced removal of the numerous statues, plantings, crosses, Stars of David, and other individually crafted installations that, with the tacit permission of city officials, they had placed on the individual graves of their deceased relatives over the course of ten to fifteen years ... The principal issue at trial was whether the non-conforming memorial arrangements assembled by plaintiffs were an "exercise of religion," and therefore protected by the relevant statues and constitutional provisions [2].The issues were complicated. Although the plaintiffs had been erecting these installations for a considerable time, they were in violation of "local cemetery regulations that limit the size and placement of memorials to small flat metal plaques, flush with the ground, giving only names and dates, and that can easily be mowed over" (ibid.). In purchasing their cemetery plots, the plaintiffs agreed to abide by those regulations; but they saw that the cemetery contained many such decorations already, and assumed that their additions would also be permitted. In many cases, cemetery staff not only knew that the decorations were being installed, they helped with the work. It was unsurprising, then, that the plaintiffs believed that their installations were compliant with the regulations.
Strictly speaking, then, the problem was not one of religious freedom but of compliance with a secular contract. It may have been a mistake for the plaintiffs to pursue a religious-freedom exemption, since they lost the case; but then, except for the cemetery's tacit toleration of the decorations over a period of years, they probably didn't have a leg to stand on otherwise. Sullivan draws on the testimony of the plaintiffs and the contributions of several academic experts in religion, including herself.
The question Sullivan poses with respect to Warner v. Boca Raton is what constitutes religion, and it was this that led me to agree at first that the case put the state in the position of determining orthodoxy. Were the statues, plantings, crosses, etc. exercises of "orthodox" religion, or were they "folk" observations, even "individual" practices that the First Amendment was not intended to protect? In the end the court ruled that they were not religion, because they were not mandated by religious authorities. Florida already had a Religious Freedom protection law at this time, and the judge's decision tended to ignore its provisions, yet as far as I can tell his ruling was upheld on appeal.
So, is religion for legal purposes a set of doctrines and practices neatly defined by elite leaders, or do lay believers and practitioners have a say? If the courts must decide this, then yes, they are deciding what is orthodoxy and what is not. But if laypeople are allowed to determine what they consider religion, wouldn't almost anything be defensible as religion under the First Amendment? The answer is probably Yes, but I suspect that's the consequence of a policy of religious freedom, because there is no reliable way for an outsider to distinguish between orthodoxy and unorthodoxy. That may not be a bad thing, and under our present regime of religious freedom the legislatures and the courts should not, as I argued before, try to settle, let alone enforce the distinction.
Nor need they do so: after all, such invented religions as Scientology, the Pastafarians, and the Church of Satan have been able to use the doctrine of religious freedom to their own advantage or, in the case of the Satanists, educationally. It's evidently not necessary, in the view of the US courts, for a religion to have existed from time immemorial or to have the prestige and dignity associated with ancient cults in order to be recognized as religions.
While I agree with Sullivan's main point, then, I disagree with a lot of her analysis. She tries to tie the plaintiffs' position to "individualism," fostered by Protestantism and secularism. She's aware that most of the plaintiffs were not Protestants but Catholic and Jewish, but she explains that away by pointing to the influence of American Protestant individualism on other traditions. I'm not persuaded, because all the plaintiffs claimed that their installations conformed to what they'd been taught by their training in their own religions. For example:
But I know that Jesus' grave was protected, was guarded, and it was not allowed to be walked on. And we were created in his image [39].Sullivan points out that "Nowhere in the New Testament accounts of Jesus' death does it say that Jesus' grave was protected so that it would not be walked on. The plaintiffs often elaborated on biblical accounts, making such untutored and naive, sometimes plainly heterodox, efforts to articulate positions of biblical interpretation and theology, searching their personal repertoire of stories and teachings to explain what they had done and why" [39]. But "orthodox," officially authorized beliefs and practices also play fast and loose with biblical material, a practice that in Christianity goes back to the New Testament itself. Christianity originated in rebellion against orthodox religious authority, appealing sometimes to "untutored and naive" elaborations of the Hebrew Bible, at other times directly to higher authority, God or the Holy Spirit. Jesus himself sometimes set his own personal authority against tradition: "You have heard that it was said to those of old ... but I say to you ..." (Matthew 5:21, ESV). That fits better with Sullivan's characterization of American religion, but I didn't notice any of the plaintiffs going so far in their testimony.
This is what I've been taught always, that it is a desecration to walk on a grave [43].This doesn't sound to me like "locat[ing] religious authority in their own religious experience and judgment" (139), very much the opposite: one's religious judgment is authorized by the tradition, which one accepts, "which in turn is my belief." I don't see how anyone could look at American evangelicalism and claim that it locates religious authority in one's own religious experience and judgment. Appeals to the Bible as authority are universal; if the appeals are often naive and untutored, they are not any more fanciful than the interpretations of duly authorized scholars and clergy. There's always a circularity in such use of authority, of course. How do I know? The Bible says so. Why does the Bible settle it? Because I believe the Bible. Why do you believe the Bible? Because the Bible says so.
Polish people love the Blessed Virgin. If you know anything about Polish people, that's one thing they do [52].
It's a tradition, as I say, it's a tradition, it's how it is done in the Jewish religion in England ... It's not necessarily a religious belief. It's a tradition which in turn is my belief [127].
Sullivan refers to the "Church's efforts to control popular piety, efforts interestingly parallel in some ways to those of the City" (38). Indeed they are, but those efforts are as old as the Church, as is the popular piety they attempt to control. Neither is limited to the United States, or to Protestantism -- for that matter, not even to Christianity. As one of the contributors to Stereotyping Religion, quoted here, pointed out, popular piety and smorgasbord religion are virtually universal around the world. It's the "high," authoritative religion that isn't representative, except as it represents a minority of believers who are interested in constructing intellectually interesting systems of dogma and practice -- and in controlling the beliefs and practices of others. What Sullivan describes as the Protestant assertion of individual religious autonomy is in fact the worldwide and historical norm, characteristic of cultures that I don't think anyone would call individualist.
Sullivan often refers to "secular courts" deciding these questions. Would "sacred courts" do any better? Of course not; that's why the ideal of religious freedom was advanced in the first place. Religious courts may at most decide what is orthodox for the orthodox, and even then they aren't to be trusted, nor should their power to discipline believers be unregulated. Orthodoxy is a construct meaningful only within a given community, like grammatical correctness, and like grammatical correctness it's subject to disagreement and change. It's often been said that a language is a dialect with an army; analogously, a religion is a heresy with an Inquisition. At the same time, though, the Warner plaintiffs' attempts to support their (yes) religious observances with regard to the dead have no authority either. They don't need to.
Sullivan's attempts to sort out the "lived religion" of the Warner plaintiffs vs. orthodoxy seem to be based in an assumption that the difference is real in some sense of the word. What really seems to have been at stake in the case were issues around property (who owned and could regulate the use of the burial plots) and class (there were some complaints that the contested decorations were "garish," for which probably read "tacky"). Only the first set of issues were really the domain of the court, I should think, and the real problem was the confusion and inconsistency of the cemetery management's enforcement of the contractual standards. Orthodoxy really wasn't the issue, which I think confirms my previous sense that religious freedom doesn't necessarily involve "secular courts" deciding what is orthodox and what isn't. A major difficulty would be getting judges to recognize this, and if experts like Sullivan and her colleagues struggled vainly with the problem, nonspecialist judges are not likely to do much better.
It also seems to me, as I've suggested, that the Religious Freedom Restoration Acts are bound to backfire, much like the Reagan-era Equal Access Act of 1984. This bill was meant to guarantee access to public school facilities for religious groups, but it ended up being the backbone of defense of Gay-Straight Alliances. Warner v. Boca Raton might be an example of such unintended consequences, and could constitute more reason why RFRAs are not a good idea: believers are giving the courts authority to decide matters they should not be deciding. As with liberals who want the State to decide what is true news and what is fake, the faithful will quickly discover that they, and not those they hate, are suffering disadvantage or even being penalized.
