The limits and uses of law on religion

A few years ago, Sarah Barringer Gordon wrote a review of five books on law and religion where she argued that there was a scholarly divide between what was going on in the realm of religious studies and in the realm of legal, and particularly constitutional studies, when it comes to the field now known as “church and state.” In that piece, she wrote that much of American religious history has happened in courtrooms and because of that, religion scholars should pay attention to what lawyers are doing. While I agree that Supreme Court decisions, aside from their obvious normative effects, have largely shaped the prevailing public discourse about the proper place of religion in the public sphere (just think about the way and the frequency people brandish about the phrase “separation of church and state,” a phrase not found in the text of the Constitution)  in everyday debates involving religion, I also think that U.S. religious history has always been much bigger and broader than what the relatively modern jurisprudence on religious freedom has encapsulated.

It is bigger and broader in two dimensions: domestic and foreign. Two recent books address these. On the domestic side, an example is David Sehat’s book “The Myth of American Religious Freedom” which incidentally is the 2012 winner of the Frederick Jackson Turner award from the Organization of American Historians. In the book, Sehat argues that the Protestant moral establishment of the Founding period has never really disappeared in U.S. history, and in its contemporary incarnation, appears in the form of the Religious Right which persists in its claims for a religiously-based social order. On the foreign side, the book is Andrew Preston’s most recent work Sword of Spirit, Shield of Faith which is a grand narrative of the role of religion in the conduct of U.S. foreign relations from the Founding period to the present.  In both instances of historical work on the topic, the law, in the few instances that it appears, is at best, marginal and does not occupy center stage.

But the insights I want to draw from this goes beyond the desire to illustrate the limits of law. In fact, I want to make the opposite conclusion – law, even in the intermittent way it has regulated the exercise and practice of religious freedom throughout U.S. history, in particular – has profoundly shaped the terrain over which the political and social contestation could occur. This could also be extended to the international arena. My dissertation seeks to track the various claims and guises under which religious liberty was promoted and protected abroad, ultimately finding these guises crystallized as part of our contemporary international legal regime on religious liberty. In a sense, the law seems marginal in this kind of project, only an end-result rather than an ever-present component. But the regime we have today is also a towering reminder of the magnitude of the stakes involved such that we cannot afford to reify a monolithic concept of religious liberty and thus treat it as a sacrosanct ideal immune from criticism. Insofar as international human rights law does not carry as much cache as national law, it still provides a legal and moral hook upon which we could hang our concrete political and moral claims in order to hold our own states accountable.

However, the important point to remember is that, for a variety of reasons, many of them path-dependent, religious liberty comes in many forms, and yet for us in the modern West, we seem to recognize only the liberal individualist variety, never mind that Europe itself seems like the best example of many possible permutations of legal arrangements ensuring religious freedom. These differences fade into the background as soon as we enter debates about religious freedom outside the West or involving those we perceive to be outside (e.g. Muslim minority in Europe), especially as we project this monolithic view on our interpretations of contemporary human rights law. Similar to what is going on inside the United States, where at least fifty years or so of jurisprudence has indeed borne witness to the wildly different ways in which the principles of free exercise and non-establishment could be transformed, transnational interpretations of religious freedom should also find ways to keep the conversation and contestation over this principle going.

Let me go back to the scholarly divide that I mentioned at the beginning of this post. One small way of keeping that conversation and contestation going is to ensure that there is an ongoing interdisciplinary dialogue around this topic.  Religious studies scholars, historians, lawyers, anthropologists, and political scientists, perhaps similar to Saba Mahmood’s Politics of Religious Freedom project, should contribute their different expertise and engage with each other in order to come up with an informed and nuanced take on the various questions that come up. The stakes involved deserve no less.

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