This conversation took place electronically between July 24 and August 6, 2020.
Samuel Moyn: Winni, congratulations on a genuinely compelling book.
Let me begin with questions to nail down my understanding of the argument.
Descriptively, your account of the landscape of American law and the entity of “the church” in it contends that “the state is not fully in charge” of its relationship to the other entity. And it’s hard to argue against you when Supreme Court justices give so much showy deference to nonstate actors to define the boundaries of state intrusion. For example, as Justice Clarence Thomas put it in Hosanna-Tabor, “The question whether an employee is a minister is itself religious in nature.” Yet as you also note, it is really constitutional judges who get to determine that this principle applies in the first place, as well as to determine its boundaries and scope. State actors, then, determine the boundaries of the state, even when they defer to the church’s determinations of its boundaries. Going further, one might suppose that what is “really” going on in these cases is a conservative project from the commanding heights of judicial power in the United States to configure state authority in one way rather than another (among other things rewriting antidiscrimination law). I take it you disagree with all this, another version of which is Cécile Laborde’s “metajurisdictional” theory that puts the state in charge, with the liberal option of leaving room for accommodations. Why is this wrong, either in general or as an account of the cases?
Winnifred Fallers Sullivan: Sam, thank you. You ask an interesting set of questions. Let me start with Cécile Laborde. I take her project in Liberalism’s Religion to be a normative one. Speaking as a political philosopher, she wants to make the case that a properly chastened liberalism can—and should—make more space for religion than it classically has. While she is committed philosophically to defending a liberal state with ultimate metajurisdictional authority, she argues that it can make a space for all of religion that deserves such a space. She and I have discussed whether she succeeds in making her case in a forum on her book.
I understand your question here to be a descriptive one, not a normative one. You ask whether I think that “what is ‘really’ going on” with the United States government today, in the exercise of its judicial power, is that it determines what counts as religion for law? Do I think, in other words, that it succeeds in exercising metajurisdictional authority, or do I think that religion, in some sense, is calling some of the shots?
I am not sure how one might prove what is really going on in these cases. That depends in part on how cynical you are about what judges say they are doing. But I do think the question you ask gets to a difficult question at the heart of the church/state problem, one that is often passed over. What kind of thing do we take religion to be? One of the reasons I like Laborde’s book so much is that, unlike many other political and legal theorists in this area, she takes this question seriously. She takes religion seriously. She listens to critics of secularism and then she attempts to disaggregate religion into its various parts, considering when the liberal state can accommodate those various parts. At various points, she says that an accommodation cannot be made because the liberal state is committed to other projects, projects that trump what she takes to be religion’s commitments.
At their strongest, religion’s proponents make the argument that it is the church, rather than the state, that is ultimately metajurisdictional. Descriptively speaking, as well as normatively speaking. This position would take different forms in different traditions and in different strands within traditions but the idea is that God, not “state actors,” is—and should be—ultimately in charge. Recognition of church jurisdiction is one way to formalize that reality.
Supreme Court justices are often deferential to the church—to religion more generally, and not just the conservative ones. Sorting out the causal effect of that judicial rhetorical deference to religion is something I think I am trying to do in this book. And yes, put at its strongest, my argument is that the church-in-law in the United States has independent sovereign power that exceeds that of the “state” and its “actors.” The state is not fully in charge. Nor—in the American scheme of things—should it be.
May I ask you a question? Do you think we have a state in the United States? Both you and Laborde are Europeanists by training. When you look at the United States from the perspective of an intellectual historian of modern Europe, do you think the United States is a state in the European sense? My own sense is that it is a far more ragged affair.
SM: That makes complete sense. I agree it’s too simple to claim that the Supreme Court with five justices acting on behalf of a conservative project explains the cases, or that they think that the state ought to be in charge in the last analysis, even to give churches accommodation or leeway. Still, it’s helpful in reading the cases, I think, to put some pressure on justices who insist that they are just reading the Constitution (especially in the case of a judge-made doctrine like the “ministerial exception”), or deferring to the independent jurisdictional authority of the church, as Chief Justice John Roberts showily does.
As a nonexpert, and mere citizen, I guess I would say that the comparative hallmark of the US state is not its metajurisdictional deference to the church, but its historic protestant disestablishment that—as Alexis de Tocqueville tried to convince reactionary Catholics back home in the nineteenth century—allowed protestant hegemony to thrive in defining private and public norms for so long. Nothing similar happened in European history, where protestant states often did establish denominational churches (in England or the Nordic countries) or where states with Catholic populations ended up in competition with the church (as in France). Part of what’s going on now, it seems to me, is a shift away from a “tri-faith” American religious ideology popular in the Cold War to a post-Cold War fragmentation in which deferring to religious jurisdiction has been one element in the changing terms of national conflict, a red-state concession to blue-state libertarianism and liberalism.
That leads me to a second question. As you point out, shockingly given the American past, all of the non-Jewish justices on the Supreme Court are Roman Catholic, except one (Neil Gorsuch) who is apparently a protestant, though very close to Roman Catholic intellectualism. And as you argue, it is even more surprising, given the old protestant baseline, that Roberts works in his Hosanna-Tabor opinion so directly with a model of “the church” on Catholic terms. It takes none other than Justice Samuel Alito to remind readers of the opinion that the protestant background of “ministering” is strange to associate with the corporate authority of churches with its historic meaning. Can you reflect a bit on how you see the developments you chart against the history of American Christianity? Even if the American state is not now and has never been “in charge,” its relationship to “religion” has varied. What is novel about the cases?
WFS: To your second question first, the oddness of a US Supreme Court without protestants (which was the case from 2010, when Justice Souter retired, to 2017, when Justice Gorsuch was appointed—the time during which Hosanna-Tabor was decided) and how that oddness might disrupt the usual narrative of American Christianity. It certainly seemed surprising ten years ago when Justice Elena Kagan replaced David Souter. It did seem to raise the possibility of the end of protestant hegemony (or even possibly to call attention to a flaw in the usual story that protestants have dominated—politically and culturally in the United States, over the long term—and that that has mattered in certain ways, as Tocqueville surmised). Was there something new about that Court that could be attributed to its non-protestantness?
Some, with more than a whiff of old anti-Catholic bias, argued that the presence of multiple Catholic justices was evidence of the pernicious infusion of Catholic natural law thinking into the Court’s work. I do not see evidence of such an intellectual resurgence myself. I think that the demographic anomaly, if it is such, is more likely best explained as a result of the sociology of the legal profession than by anything more sinister. The legal profession has been a route to immigrant success. Or, perhaps, if one wanted to descend to religio-ethnic caricature, Jews and Catholics have historically been more likely to believe in law than their antinomian fellow citizens? As for their legal philosophy, the current majority seems more indebted to the Federalist Society than to the Pope—or to Thomas Aquinas. And their knowledge of Catholic theology and history is thin. Maybe religious affiliation matters less than some would like to believe?
Historically, Catholics and Jews on the Court have had varied views and varied judicial styles. There are a lot of different kinds of Catholics and Jews and protestants. None of the justices of any religious affiliation today is particularly interested in or informed about religion, with the possible exception of Clarence Thomas. One might contrast, for example, former Justice Brennan, who wrote long and learned opinions about religion, Catholic and otherwise, to Justice Alito, whose disquisitions in Hosanna Tabor and in Espinoza reflect not a theological education but a kind of Wikipedia approach to the sociological study of religion. Roberts’s Hosanna-Tabor church history, on the other hand, feels more like the product of the law office history produced by the church autonomy movement than by his religious training.
I agree with you that the religion cases in general are better understood with reference to larger US political and cultural shifts, the history of which the Court has a curiously foreshortened view as a result of the fact that a national religion jurisprudence only began in earnest in the mid-twentieth century, as the result of the incorporation doctrine. The vast religious, political, and social transformations in the United States between adoption of the First Amendment and the Cantwell decision are mostly unknown to the Court’s religion jurisprudence. The justices are accustomed to quoting Madison and Jefferson and then freelancing on the facts before them. They know little religious history and have no political theology.
As you suggest, in those first mid-twentieth century cases we see the world described by Will Herberg in Protestant Catholic Jew, one in which the religion of America was the American way of life, a life largely defined by the Cold War. Things changed in the nineteen nineties. Both with respect to nonestablishment and with respect to free exercise. The establishment clause cases, always mostly about schools, reacted to Brown and to school busing by finding ways to shore up privately funded education. Suddenly government funding for religious schooling, as well as other forms of government support for religion, laundered now by individual choice, was no longer an establishment. No coercion was the byword. Less focused on the specter of the Vatican raised by funding mostly Catholic schools, the Justices now responded to anxiety about racial and socioeconomic integration. They also lost faith in their free exercise jurisprudence, no longer, I think, seeing how to discriminate rationally among its many petitioners. Justice Scalia’s opinion in Smith remade the free exercise landscape, shifting religious freedom to the legislative domain and provoking passage of the Religious Freedom Restoration Act.
In my view, the recent religion cases are not about religion really—or not about religious difference in the confessional sense. Americans no longer sort themselves in those ways. (After all, the supposedly Catholic thinking in Roberts’s Hosanna-Tabor opinion was in defense of a Lutheran school!) The new ACA contraception cases reflect the failure to create universal health care. The school voucher cases reflect the deliberate failure to invest in quality public schooling. The through-line is the religion of whiteness.
In Europe, to grotesquely oversimplify the complication that is Europe, the democratic successors to its monarchies inherited a paternalistic understanding of the state, which has morphed into various versions of the welfare state. Churches became partners in the delivery of social services—and were largely domesticated. Ministers became ministers in both senses, according to Foucault, as I’ve discussed elsewhere.
In the United States, instead of the welfare state, we have freedom. While the Court may be dominated by Catholics and Jews right now, there is a sense in which we are all protestants now, individualist, fideist, and iconoclastic—prey to magical thinking of all kinds—especially of the free-market variety.
Disestablishment promised religion without a state. And perhaps a country without a state. We, the people, were to lead both. Ironically, neither has yet been realized. Most American religionists—and most atheists—now seek state capture.
So, Sam. You have argued powerfully that the human rights movement has failed to address social and economic inequality. Where does religion fit into your plea for a rethinking of human rights? Not religious freedom, but religion?
SM: To be honest, it may be a blind spot at least as regards the present. The main narrative I have tried to establish in Christian Human Rights and my work in general is that religion helped define human rights in the middle of the twentieth century in crucial ways, but that secular progressives successfully redefined them starting in the 1970s. In the beginning of the age of human rights, in some places, this progressive move involved interesting coalitions with some Christian movements, since a common enemy of authoritarian or “totalitarian” rule allowed them.
I read the politics of Mike Pompeo’s recent Commission on Unalienable Rights to be about belatedly restoring control over human rights for the sake of a religious project. (It is no accident that the chair of Pompeo’s commission, Harvard Law professor Mary Ann Glendon, is something of a nostalgist for the 1940s, when she can plausibly claim human rights were part of a religious project.) More controversially, the Commission’s report revealed that this revival—which has made its own coalition with noxious right-wing populists in America and elsewhere—has proved frail indeed, much like Donald Trump’s larger presidency. Your cases show that the US Constitution is far more powerful a threat, and far more under the control, of changing right-wing appeals to religion than international human rights politics are.
I do see some forms of religion as potential allies in distributional ethics—which go back to Jesus—but I detect very little commitment to distributive egalitarianism in historic Christian sources, except in a few radical historic sects. The funny thing is that Christianity has probably been the main incubator across the millennia for a concern for poverty alleviation and palliation (rather than a concern for egalitarian citizenship too), and it is around poverty that secular reform has coalesced in recent decades, even as it has marginalized religious inputs into the human rights version of that reform in our time.
Your reference to whiteness as the core of what religion we can find in your cases, perhaps on protestant terms even when channeled by Roman Catholic justices, allows me to ask about your amazing chapter about the “Black church.” After your chapters on church property in American law and on the nexus of “the church” and its constitutional protections with business corporations (as in the Hobby Lobby case), you turn in an unexpected direction. That is, you imply that the rising politics of the church in American jurisprudence should lead us to some skepticism, not only about the somewhat mythical general idea of a “Black church” stretching back to slave times, but also about the contributions of current invocations of it to racial justice. Indeed, you associate it with the criminalization of Blackness. What I would like you to spell out is how this argument, and the way you pursue it in reading cases in the lower courts, fits with your study of the emerging Supreme Court jurisprudence of “the church” in the rest of the book.
WFS: Let me start with your questions about the Black church and then turn back to the role of religion in distributional politics.
I want to underscore the fact that what I am talking about in Chapter Four is what I call the Black church-in-law, the Black church that is a creature of the US justice system. (As I emphasize in the chapter, I do not mean to include all expressions of Black Christianity in this phrase.)
My book is about the church-in-law, that is, the church that comes into being as the result of disestablishment and then afterwards becomes a central figure in the political theology of the United States. I understand the church-in-law to borrow some of its charisma from the church in a more strictly theological sense, but the church of this book is sovereign sibling to the state and the corporation, together enabling the pathologies of US law and politics, including racism.
I have not written before about African American religion. I rely on extensive scholarship on Black religion by historians and others. And I am still learning. But what I came to see as I wrote this book was that I could not understand or describe the church-in-law in the United States without taking explicit note of the ways in which it is the constitution of the Black church-in-law that makes visible the church-in-law as a project of the politics of whiteness. And I have simply become more convinced of that since I finished the book more than a year ago. Looking around today, efforts to open churches during a pandemic that disproportionally affects people of color are but further evidence of the ways in which American constitutional politics are tied to the white church.
The racial divide in American Christianity is not a new story, of course. Sunday morning is still the most segregated hour, as Dr. King lamented in 1960. What I hope to begin to describe in this book are the ways in which that segregation is legally constituted through the person of the church.
Chapter Four turns to lower courts and to the administration of criminal justice. The criminalization of Blackness is legally constituted by the US Constitution from the beginning, of course, as many have detailed. A full treatment of the church-in-law of the Constitution would cover all of its provisions, not just the interpretation of the First Amendment. My book only really begins the argument that the church-in-law is fundamentally a product of the politics of whiteness, and that from the beginning, as is evident from the work of Sylvester Johnson and Katharine Gerbner, among others. The church and the corporation together emerge over the nineteenth century as partners in control of what is to be American. Today’s Court seems to want to wish away the problem of racial justice, as is evident in their voting rights cases. The Court’s whole jurisprudence, however, is arguably dependent on the criminalization of Blackness and the erasure of Black religion of all kinds, not just Christianity.
The courts and the prisons do not of course hold a monopoly on Black political theology in the United States. For an extraordinary alternative account of the religion of American law, see Spencer Dew’s The Aliites: Race and Law in the Religions of Noble Drew Ali. A more fundamental reorientation would begin with what my colleague, J. Kameron Carter, calls the Black poetics of the sacred—taking his cue, in part, from the work of historian of religion Charles Long.
Returning though, to your comments on the role of religion in distributional politics: I find them interesting because so many on the left today simply equate religion with reactionary politics or worse. You have a more complicated view. What I would call the church-in-law appears in various guises in your story about human rights and distributional justice, the mid-twentieth century Christian cold warriors, today’s evangelical-Catholic alliance, with the religion of Jesus somehow providing a thread through the millennia.
Could I press you a bit on what you call your blind spot? I take it that we agree that wealth disparity is a matter of desperate concern today. If indeed the religion of Jesus is consistently an incubator of poverty alleviation, as you say, why continue to marginalize it? What is gained? But perhaps more importantly, what is lost? Those calling for a revival of political theology today, a political theology beyond the church-in-law, if you will, argue that returning to religion will enable a fuller reconsideration of what it means to be human.
SM: I don’t propose to marginalize it but I want to exploit any overlap between the historic religions and my own secularist sense of justice, which goes beyond the sufficient provision of most Christian ethics to demand more egalitarian distribution. It could draw, of course, on religious sources, like Judaism’s call to occasional jubilee and Jesus’s denunciation of the rich as candidates for salvation. The really challenging possibility for a position like mine (or Laborde’s) is that, in calling for the state to be in charge and asking religions to accommodate to it or to provide energy and sources for adhering to the state’s norms, we are blind to how crypto-religious our sort of theory of the state remains. I don’t have time to fend off this objection, but it is serious.
What I want to ask in my final question for you, therefore, turns the tables. One of your main indictments of the church-in-law is out of feminist concerns. But instead of laying out the normative grounds for your feminist critique of America’s right-wing jurisprudence, appealing to some secular theory of the state, you often allude to the way in which feminism and religion have been inseparable—for example, in some of your remarks about the erasure of the realities of a female priesthood. No doubt, as you cite Joan Scott insisting, secular modernity has often involved reinventing the subordination of women. But compared to what alternative? I cannot see that such an argument justifies holding out for a nonpatriarchal church as a source of feminist equality. For those who might see the idea of a nonpatriarchal church as a contradiction in terms, could you conclude by explaining the comparative promise you see in it?
WFS: First, as we conclude this conversation, thank you, Sam, for your generous willingness to push me to articulate more clearly what my book is about.
You ask me here at the end to lay out a normative vision for an alternative to the current sorry picture I have drawn with respect to the intersection of law and religion in the United States. I have only pieces of such a project at this point. Seeing beyond the patriarchy (and I use this somewhat anachronistic term to stand in for a broader set of conditions of injustice), religious and secular, may seem pretty difficult these days, but I think there are those who are doing so. While constructing a full-blown ecclesiology is both beyond our space here and above my paygrade, there are those doing this work. I see my students and others already living more attentively to those around them, human and otherwise.
I think that boldness about imagining law beyond the state is one necessary piece of this effort. Law, not just religion. As Mark De Wolfe Howe said in his wonderful book on the religion clauses, The Garden and the Wilderness: “Each of us in entirely free to find [their] history in other places than the pages of the United States Reports.” Their history and their law. I find the work of William Miller highly suggestive. See, for example, his Hrafnkel, or the Ambiguities. And Zakiyyah Jackson’s Becoming Human: Matter and Meaning in an Antiblack World. And myriad projects of local activism. My own small contribution to this effort will be a reappraisal of the vernacular political theology of Joan of Arc.
You say that you want to exploit “the overlap between the historic religions and [your] own secularist sense of justice” to further your political aims. (The metajurisdictional frame here as I understand it is supplied by you, not the justices!) One difficulty I think is that what you—and many others—see as selectively valuable in the historic religions is not actually separable from the rest of religion. Relying on the ethical visions of the historic religions to reform our politics without investing in their communal, liturgical and cosmological aspects—their churchness, in other words—is to live on borrowed time. Those ethical visions depend for their integrity on the rest of religion, including the horizon beyond the human. The rest needs an overhaul, for sure, but not, I think, dismissal.
What I—along with some others in religious studies—are saying is that we cannot give an account of the human without religion—religion broadly understood and as something to argue about, to be sure. But the legal exclusion of nonstatist religious modes makes living together impossible.