This conversation took place via email between July 11 and July 21, 2020.
Linda Greenhouse: To begin our conversation by stating the obvious: Your timing is perfect. Church State Corporation could not have arrived at a more necessary moment. Within the past two weeks, the Supreme Court has handed down three decisions that engage directly with the questions your book poses, including: “What is a church in the mind of a secular American today?” “How does US law imagine religion?” and “Where to draw the line between religion and nonreligion?” While I expect that you and I will agree on the problematic nature of each of these decisions, we should at least thank the Court for giving us so much rich material to discuss.
I’m eager to dig deeply into these decisions with you. I’ll simply identify them here for readers’ convenience and as a taste of our conversation to come.
In Our Lady of Guadalupe School v. Morrissey-Berru, the Court blew past the boundaries it had at least implicitly set in 2012 when it created a “ministerial exception” that freed religiously affiliated employers from having to comply with statutes that protect some employees against various kinds of discrimination. The 2012 decision Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, to which you devote your first chapter, at least suggested that the employees whom this new free exercise doctrine would strip of their legal protections would be members of a limited group, defined by their liturgical identity within the organization. The new decision, by a vote of 7 to 2 (notably, the two dissenters had joined the unanimous opinion in Hosanna-Tabor), shows the exception not to be so limited after all.
In Espinoza v. Montana Department of Revenue, the Court held that a state that subsidizes nonpublic education must extend the same subsidy to religious education in order to avoid unconstitutional discrimination “based on religious status.” This decision, too, took a recent Supreme Court decision and pushed beyond it. In 2017, in Trinity Lutheran Church v. Comer, the Court held that Missouri violated the free exercise clause by excluding a church-owned daycare center from eligibility for a grant to resurface its playground (discussed in your book, pages 54-55). In a footnote, Chief Justice Roberts placed a limit on the reach of his opinion: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Now, it turns out, the nondiscrimination principle the Court invoked in Trinity Lutheran applies to schools as well. (Among the four dissenters in the new case were two who had joined the Chief Justice’s opinion in Trinity Lutheran.)
Finally, there is Little Sisters of the Poor v. Pennsylvania, a follow-up to the 2014 Hobby Lobby decision that is the subject of your Chapter 3. In Hobby Lobby, the Court interpreted not the Constitution but a 1993 statute, the Religious Freedom Restoration Act, to require the government to accommodate the religiously observant owners of privately held corporations. The business owners had objected to providing their employees with insurance coverage for contraception, as required by the Affordable Care Act, on the ground that providing the coverage would make them complicit in their employees’ sinful contraceptive behavior. Coming into office, the Trump administration then went beyond Hobby Lobby’s accommodation, offering a complete opt-out from the contraception mandate for employers who objected on either religious or “moral” grounds. In the Little Sisters decision, the Court, without directly ruling on the statutory issue, rejected a procedural challenge to the Trump rule. The decision to vacate a nationwide injunction resulted in some 100,000 female employees losing their birth control coverage.
As you can see, we have a great deal to discuss. Turning now, briefly, to Church State Corporation, I was struck by your subtitle: Construing Religion in US Law. Clearly, those are carefully chosen words, and they are open to multiple interpretations. Who or what is doing the construing? The law? You yourself? And what about religion needs construing? You ask: “How does US law imagine religion?” (my italics) You note the “deep ambiguity in US law about what counts as religion.” (my italics)
These “construing” questions are both antecedent to and inextricable from the heart of your inquiry into the role of “the church” in the legal system under which a country founded on disestablishment has chosen to live. When the Supreme Court privileges the complicity claims of employers over the statutory protection of employees who don’t share their bosses’ views of complicity in sin or of sin itself, how is the Court understanding religion, let alone religion’s role in civil society? How can the Court on the one hand (in the Espinoza school funding case) claim that the state was improperly subjecting a church to discrimination on the basis of “religious status and not religious use”—as if the name on the door was all that mattered, not what went on inside—while at the same time (in the Guadalupe School ministerial exception case) portray church-run schools as so pervasively religious that the ministerial exception must as a matter of “the church’s” free exercise extend far beyond those employees denominated as ministers?
Until not too many years ago, the First Amendment’s two religion clauses, protecting establishment and free exercise, were understood to exist in dynamic tension, exemplified by Chief Justice Rehnquist’s “play in the joints” opinion in Locke v. Davey, the relevance of which the majority in Espinoza disclaims. In her dissenting opinion in Espinoza, Justice Sotomayor, who like four of the five justices in the majority had a Catholic education, warns that the rule emerging from the case “risks reading the establishment clause out of the Constitution.” Is she right? And, if so, in what ways will it matter? (The exception is Justice Alito, who attended a public high school. Along with Justice Sotomayor, Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh all had Catholic educations—through college, in the case of Justice Thomas.)
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Winnifred Fallers Sullivan: Thank you for your opening salvo! And thank you for reading my book and agreeing to participate in this forum. I have long been a fan of your work. I am flattered and delighted to have a dialogue with you.
You opened by addressing our readers. I liked that. So, let me also begin by addressing our readers. For those of you who don’t know her, Linda Greenhouse is a distinguished Pulitzer Prize–winning journalist and one of the most important US Supreme Court commentators of the last half century. It is a half century during which the jurisprudence of the First Amendment religion clauses has changed dramatically. Linda has had a seat in the front row. She is a national treasure.
Now, back to you, Linda. Your address to our readers begins with a brief summary of the opinions in the three religion cases decided by the US Supreme Court in its October 2019 term. You add that you assume that I will agree that the Court’s reasoning in these cases is problematic—and then you turn to some specific questions about my book and implications for the argument of my book in light of these new cases. Continuing this three-cornered conversation, I begin by clarifying my overall view of the Court’s religion clause jurisprudence in light of these new opinions—and then ask you a couple of questions about your own work.
As you note, the three new cases basically extend the Court’s reasoning in three earlier cases that I discuss in the book: Our Lady of Guadalupe extends the reasoning in Hosanna-Tabor; Espinoza extends the reasoning in Trinity Church; and Little Sisters extends the reasoning in the Hobby Lobby case. As always with the often multiple sets of opinions in religion cases, there is much to provoke, but none of the new cases are particularly surprising or very interesting, in my view, given the larger picture that you and I are both drawn to.
I do find these decisions problematic, but not because they are doctrinally contortionist. These cases and religion clause law more generally, in my view, are distractions from critical issues that face our society. The schools cases distract us from our failure to create high-quality public education for all. Public funding for private schooling, religious and otherwise, is now driven by the politics of whiteness. The healthcare exemption cases distract us from our failure to create universal healthcare.
You ask about my subtitle, “Construing Religion in US Law.” You ask who is doing the construing. The success of the US constitutional text as an ongoing basis for governance depends in part on a shared understanding of its meaning—or at least a somewhat shared understanding of the terms on which we argue about its meaning. While the religion clauses are not unique in this respect, I do think that the existence of such a shared understanding is particularly problematic in their case. That is so for a number of reasons. One is the popular but misguided notion that teaching religion in public schools is illegal. We do not learn about religion together. It is also so because of our longstanding anti-intellectualism in religion (an American version of anti-clericalism), as in other matters.
The meaning of religion for the purposes of US constitutional law is, in my view, too unstable to play a legal role in the collaborative effort at self-government. (This is an argument I’ve made in other places, including in The Impossibility of Religious Freedom.) This instability has a number of sources, some of which extend beyond the US case into a longer history of the modern story of religion—and of secularism and secularization—others of which are particular to the United States. These latter would include the long public dominance of white protestantism and the distinctive American legal phenomenon of disestablishment, which is the focus of my book. As a society, we have no shared language for talking about religion. That is what Americans mean by religious freedom.
You have kindly shared with me some of your recent columns on the Court and a recent article in the Supreme Court Review, “The Supreme Court’s Challenge to Civil Society.” Your article gives us a glimpse into your larger concerns about the Court and its role in our society. I understand you to believe that the Court’s jurisprudence has tended toward a libertarianism that erodes our capacity to collectively imagine and work for the common good. Reading your columns, I understand you to see the Court’s religion clause jurisprudence as contributing to a fragmenting of our civic culture. Do I understand you correctly?
I don’t disagree with you, although I think that the Court is only a symptom, not a cause. I also think that we should not look to the state to articulate law and religion in the broadest sense. Law and religion in this broader sense—in a non-statist sense—is a shared or negotiated project. We in the United States do not have a state in the European sense. (See Ekklesia for an exploration of this aspect of American difference.) We do not imagine and depend on a paternalistic government that looks out for our welfare. In our constitutional order, we the people must do that for ourselves. In doing that we must all learn from and draw from the alternative collectivities that inhabit the United States—including those of indigenous and other minority communities.
You have mentioned being “obsessed” with the religion cases. I think our readers would be interested in the source of that obsession. I sometimes ask legal scholars who work in this area how they got interested in religion. Several recently have said, “Oh, I am not interested in religion.” They seem to be interested rather in how the state should control it. Are you interested in religion?
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LG: Let me tackle your last question first: the source of my self-described “obsession” with the religion cases. I think it’s that in my forty-plus years of closely observing the Supreme Court, I’ve witnessed a steady undermining of what I had regarded as a workable settlement in which the two religion clauses could coexist in a dynamic and healthy tension, with neither the establishment clause nor the free exercise clause gaining the upper hand for a prolonged period. I think the near-erasure of the establishment clause is unfortunate and even dangerous.
My journalistic instinct is to look for stories that I don’t believe are being adequately told, and I am not sure that Americans who aren’t personally engaged in these battles understand the dimensions of what’s occurring.
In my Op Ed column for the New York Times, I have completely free rein in my choice of what to write, so I’ve taken it on myself to describe what I see happening in this area. My column at the end of the recent Supreme Court term, in focusing on the trio of religion cases the Court decided in the closing weeks, provided a perspective quite different from other mainstream media accounts of the “liberal” term. You’re right to conclude that my concern is with the Court’s privileging of religion—in the justices’ perhaps imperfect understanding of that word—as a ticket to get out of the general obligations of citizenship. In your chapter on the ministerial exception cases, you refer to “a privileged lawlessness for church governance.” I might expand that to say “a privileged lawlessness for church membership,” and I understand your book to be asking: why should that be?
You’re right to suggest that much of my writing is juricentric and may seem not to take due notice of the forces that drive these disputes onto the Court’s docket. I’ll plead guilty with an explanation. I do use a lot of my limited column real estate to clarify and contextualize the Court’s decisions for readers who may never hold a Supreme Court opinion in their hands. But in my academic writing, I’ve partnered with Reva Siegel, one of the country’s leading scholars of “democratic constitutionalism,” an area of constitutional law that explores how forces outside the courts contribute to changes in constitutional meaning.
Ten years ago, we put together an online sourcebook of original documents from the debate over abortion during the years leading up to Roe v. Wade. I found the religion materials that we compiled particularly fascinating. The position of the bishops was no surprise, of course. But who remembers that just about every Protestant denomination and organization, including the Southern Baptist Convention and the National Association of Evangelicals, held a position on abortion that stopped short, sometimes well short, of categorical opposition to reform at a time when a growing societal debate had put the century-old regime of abortion’s criminalization on the table for public inspection?
In a final chapter of the book, we described how the supposed “backlash” against Roe was the result of careful cultivation by Republican strategists in alliance with the Catholic Church and with evangelicals who had been brought into politics through opposition to the Equal Rights Amendment. This was the “Moral Majority” that facilitated the rise of Ronald Reagan. Opposition to abortion had not previously been central to evangelical identity; it gradually became identitarian through political manipulation.
So yes, I’m well aware that the Supreme Court we have today is no accident. It is, as you say, “only a symptom, not a cause.” And the Court’s turn on the religion cases is very much the product of the forces set loose by the social revolutions and counterrevolutions of the 1960s and 1970s.
To return to your book before I hand this dialogue back to you: your chapter on Hobby Lobby (the case that’s the perfect embodiment of the church-corporation) is essential reading for assessing the Little Sisters decision. You ask: “What makes an objection to abortion religious? Why would a non-religious objection to abortion not deserve the same exemption?” Well, of course, the Trump rules that the Court upholds in Little Sisters offer employers (including corporate employers) the same opt-out, whether their opposition to contraception is religious or “moral,” a word that is nowhere defined, either in the applicable rule or in the Court’s opinion. What are we to make of the inclusion of nonreligious objectors, now authorized to deny their female employees a benefit the Affordable Care Act intended to make available to women? Does it make the rule more acceptable, or less?
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WFS: Thank you for this! I think we are getting to some useful mapping projects! You mention that you are interested in the way that what you once saw to be a “workable settlement” between the two clauses seems to be coming unraveled—or undermined.
We might turn to our readers here and give a bit of background about the workable settlement because it is the terms of that settlement that concern me, particularly the exclusionary aspects of the definition of religion in that settlement.
The reason for a need for a “workable settlement” arises from the fact that the religion clauses of the First Amendment to the US Constitution seem to mandate two incompatible things. The words of the Amendment are: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . .” Fully enforcing either the no establishment mandate or the free exercise guarantee is understood to be impossible because each would get in the way of the other. As you note, the Court has often said that there must be some tacit forgiveness between the two—or what they call “play in the joints.” For about a quarter century—during the time when you and I went to law school—the settlement was that mostly people did not have an absolute right to violate the law in the name of religious freedom. And mostly the government was not supposed to directly sponsor religious worship or fund religious institutions—again with some important exceptions. This settlement depended on a particular understanding of religion—a largely protestant one—one which saw religion as mostly private, interior, and individual.
My book is about the ways in which that settlement, ironically perhaps, also implicitly assumed the privileged existence in law of the church. By the 1980s this settlement was coming undone because those who were excluded from the settlement began to protest.
I think incorporation is an important part of this story as well. Our readers should understand that interpretation of the religion clauses by the Supreme Court does not go back to the beginning of the country but only to the mid-twentieth century. Until 1940, the religion clauses were not understood to be enforceable against the states. It was only with passage of the Fourteenth Amendment, one of the post-Civil War Reconstruction amendments, that a foundation was laid for enforcement against the states. And, even then, it was not until almost eighty years later that it actually happened. What you call a workable settlement was a mid-twentieth century invention. One reason incorporation is important is because equality is a Fourteenth Amendment principle and that is how it gets included in the religion jurisprudence. (See Mark De Wolfe Howe’s The Garden and the Wilderness) Another reason is because US religion and US law changed a good deal between the drafting of the First Amendment and the Civil War and then again between the Civil War and the mid-twentieth century.
It was school voucher programs that led to an open breach of the no funding rule. That is a troubling story because it coincides with the decline of public schools following Brown v. Bd. of Education leading to the widespread creation of private and home schooling for whites. As for free exercise, the Court became justifiably troubled, I think, by the difficulty in drawing a line between religious practices that should be accommodated and those that shouldn’t. Justice Scalia’s opinion in Smith expressed that frustration by closing the door to judicial exemptions. The result was unanimous passage of RFRA, a statute that opened the door much farther than the Court ever had in its interpretation of the free exercise clause.
You express nostalgia for what you call the workable settlement. I understand this to be because you see the subsequent unraveling to be part of a larger unraveling of civic life in the United States. I see this. Yet, still, I wonder why you would want to go back, given what I understand to be your politics. The workable settlement depended, as you say, on an “imperfect” definition of religion—one that was discriminatory.
You refer us to your important work on the reaction to Roe v. Wade, specifically the way in which political coalitions between Catholics and evangelicals fueled the opposition. As you note, before this time many, perhaps most, protestants, did not oppose the legalization of abortion. Indeed many advocated for decriminalization, as R. Marie Griffith has shown in her book. And laws criminalizing abortion were also supported by the AMA. Legal regulation of abortion is not primarily a religion story, except as it is made such by recent culture wars politics. Secular as well as religious people have been avid controllers of women’s bodies, as Joan Scott and others have shown.
Because this is an academic forum, not a legal one, I want to ask you, as a thought experiment, to consider discussing amending the Constitution to remove the religion clauses. If that was done, religious stuff would not be considered special by law and therefore law would not have to continually make a distinction between good and bad religion. Religion might not be as available to the culture wars in the ways made so salient by “the world Smith made.” I believe such a move might—by finally disestablishing the church—make a modest contribution to what we both seek—justice and a vigorous public forum.
Such a constitutional amendment would certainly not solve all divisions but perhaps instead of constantly returning to the false dichotomy between the religious right and the religious left we could talk about universal healthcare and decent schools. We could also talk about when exemptions should be granted on moral grounds, a very difficult and thorny topic indeed, one played out in the conscientious objector cases. Sometimes conscientious objectors will have to go to jail in witness to their alternative visions of justice, as many Americans have, including Muhammad Ali.
I have come to understand that one of the reasons I am attracted by this nuclear option is because I think religion is always present—even necessary—to being human. I think we need alternatives to the secular liberal state and that freeing religion from state control through the religion clauses might cause the flourishing of “otherwise worlds“—something we desperately need right now. That is why at the end of my book I try to imagine such worlds using the Masterpiece Cake decision.
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LG: Of course you’re correct that my “nostalgia” for the “workable settlement” between the competing religion clauses is rooted in a vision of an America that no longer exists and no doubt didn’t exist even while the settlement seemed to be holding. And the very forces that led to the settlement’s unraveling—the fading of mainline protestant dominance, the country’s increasing religious diversity, and the unwillingness of minority religions and of those who disavow religion to stay in their assigned places at the margins—have produced the Christian backlash that is driving our politics and that has captured the Supreme Court. Your church-in-law feels itself an embattled victim, clinging to power by using all the political and legal tools it can muster. In a recent essay, “Should We Placate White Christian Fragility?” Caroline Corbin, a law professor, draws on current work about embedded white racism to offer this useful observation: “I do not think it is an accident that the vast majority of litigants seeking religious exemptions are white Christians. . . White fragility or Christian fragility describes the constellation of behaviors that the privileged often exhibit when people point out their privileges or, even worse, threaten to take them away.”
This brings me to my response to your mind-expanding thought experiment: Why not just abolish the religion clauses?
Such an abolition would mean that members of the still-powerful Christian majority could no longer seek shelter in a metastasized free exercise clause. Their claims would be, as you suggest in your final chapter, “something to argue about, not to enforce.” As you might expect, I found that vision very appealing.
Then I thought: but wouldn’t that strip the establishment clause’s protection from the nonmajority? I thought of the facts of a 2014 Supreme Court case, Town of Greece v. Galloway. The town had the practice of inviting local members of the clergy to open official meetings—the sessions at which local residents had to show up to conduct business with the town—with a prayer. All the clergy happened to be Christian, and many of the prayers, over a period of many years, were overtly Christological. Two non-Christian residents sued under the establishment clause. They won in the lower court, but the Supreme Court ruled against them by a vote of 5 to 4. Justice Kennedy’s majority opinion boiled down to: We’re all adults here, and we’re all exposed to speech we don’t like from time to time. If you don’t like the prayers, no one is making you to listen to them. (This was the same Justice Kennedy who displayed such exquisite sensitivity to what he viewed as anti-religious speech in Masterpiece Cakeshop—see your page 166 and my “How the Supreme Court Avoided the Cake Case’s Tough Issues.”) In her dissenting opinion, Justice Kagan said she had no problem with legislative prayer as such, nor did she think the Court should turn the town into a “religion-free zone.” But she said the monoreligious nature of the practice was more than the establishment clause could bear.
So it turns out that at the end of the day, the establishment clause offers scarcely any protection at all and in the years since Town of Greece, “establishment” has nearly fallen out of the Supreme Court majority’s vocabulary. And of course, had the case come out the other way and that particular town’s unbroken string of Christian prayers been deemed unconstitutional, how would a court have decided the next case? Would three Christian prayers out of every four town meetings have been okay? Or at only half the meetings? You see the point: simply waving “establishment clause” doesn’t actually solve the problem, nor can it.
So, Winni, you have opened my mind and my eyes. The apparent “settlement” was never real. That it seems at least to have reflected a particular moment in time is, as you point out, only because we look at that moment through a distorted lens. Whether God can save us from ourselves is a question far above my pay grade. But it’s clear that law can’t, and should probably stop trying.