This conversation took place virtually between September 7 and September 18, 2020.
Julian Rivers: Thank you so much for your new book, Church State Corporation. I have just finished reading it with great pleasure; it sparkles with scholarly insight and provokes in all the right ways. Let me be more precise. Your first three chapters (on religious organizations as employers, church property, and the religious rights of commercial corporations) were broadly familiar territory; your analysis often had me chuckling and cheering—and by the way, thank you for your generous engagement with my own work on similar topics within English law. Chapter 4 (“The Body of Christ in Blackface”) was quite different. Your account of the racialized religious-penal complex that is the “Angola Church” was new material for me, and so powerfully and chillingly moving that it has left me struggling for words. Right now, lament seems the only possible response.
I would like to start by underlining some key claims that I think run through your work, and which I agree are very important. You are right to emphasize that even in constitutional systems that seek to be “nonreligious” and separate themselves from religion, there must be some concept of what “religion” is for these purposes. This concept is inevitably shaped by dominant social forms. The law creates a certain space for religious belief and action, and in this sense every legal system “establishes” religion by law. Even if not based on an explicit public theology it cannot avoid preferring and suppressing alternative theologies. It follows that you are also right to suggest in your opening comments that the models of state–religion relationship we adopt in comparative constitutional law are deeply suspect. In some sense, every state is religious, distances itself from religions, collaborates with religions, constrains religions, and empowers religions. There are some family resemblances among various patterns of engagement, but the comparative models are more an expression of constitutional self-awareness than accurate descriptive types. Thirdly, I think you are right to remind us of the sheer complexity of the way in which any legal system engages with religiosity. Not only are religions themselves bewilderingly diverse, but the law’s engagement with them is cross-cut by considerations of politics, economics, gender, race, and sexuality. You draw these out so helpfully. Finally, I think you are suggesting that judicial unwillingness to engage in substantive questions of religious doctrine and practice—while entirely understandable in the name of legal liberty and legitimacy—is having a detrimental effect on the optimal resolution of disputes. If you are, I agree with that too!
One aspect of recent developments in the religious clause jurisprudence you describe leaves me puzzled, and I wonder if you could offer some more reflections upon it? The doctrinal instability within the church property cases is intelligible, because they depend on disentangling the effects of schism. As our own Supreme Court in the United Kingdom has emphasized against a contrary tendency in the case law (Khaira v Shergill  UKSC 33), if we are going to resolve such disputes fairly, we cannot avoid engaging carefully and sensitively with the religious self-understanding of the group in question. How to do that is not so straightforward. Intelligible, too, is your account in Chapter 3 of the commercial corporation as a bearer of modern religious identity as well as the simplistic association of different views on matters of gender and sexuality as “religious” or “nonreligious.” Here, too, we see the effect of a judicial unwillingness to probe beliefs and practices claimed as religious.
What puzzled me was the judicial appeal to “the church” in Hosanna-Tabor. It implies a remarkably narrow and robust account of the social form of religion, as you say, invoking the mystical body of Christ as the ideal type of all religious organization. The tendency in secularizing liberal democracies has been to expand the legal concepts of religion at work—we can see evidence of this in both British and US case law. Yet here is a contrary movement, a sort of conceptual conservatism. You allude to the presence of Roman Catholic justices without committing yourself to any causal explanation here. So what is going on here? Is it an expression of a lack of religious literacy or theological imagination? Is it perhaps a covert normative claim, that the law rightly shapes religious expression into this form? Or is it something else?
Winnifred Fallers Sullivan: First of all, thank you, Julian, for your generous appreciation of my book. I think there may be only a few of us who are inclined to chuckle about these matters!
Your linked question and puzzlement concerning the very American tendency of judges to, on the one hand, express fastidiousness by refusing to explicitly engage with theological matters while, on the other, robustly—and blithely—affirming the apparently god-given rights of “the” church, allows me to underline the peculiarity—even paradox—of American disestablishment—how it can be both latitudinarian and conservative at the same time.
As I mentioned in my conversation with Nandini Chatterjee in this forum, about ten years ago I served as an expert witness for the plaintiff prisoners in a case claiming that a faith-based in-prison program violated their First Amendment nonestablishment rights. In my report and in my testimony, I described the program as evangelical Christian in nature. The trial judge ruled the program to be an unconstitutional establishment of religion by the state of Iowa. On appeal, the judgment was affirmed but the Court of Appeals also ruled that it was error for the trial court judge to have heard my testimony because it was irrelevant and establishmentarian. Religiosity was something that judges could and should decide for themselves—without any consultation with experts. It was a matter of law rather than fact, one might say. One sees here a low-church protestant claim about authority in religious matters—passing for religious freedom. The predominance of a low-church theological sensibility, sometimes called a de facto establishment of evangelical protestantism, also accounts for what you call “a lack of religious literacy or theological imagination.”
American disavowal of such judicial authority, a variety of a more general American anti-intellectualism and anti-elitism—also makes the expansion of rights model characteristic of what you call “secularizing liberal democracies” impossible. Britain—and most European countries, as you say, extended religious liberty over the last couple of centuries by analogizing to the established church. Without an established church, there has been no organization in the United States to analogize out from, or to rebel against. Instead we pretend that everyone has always enjoyed religious freedom, constitutionally speaking, course corrections only having had to be made from time to time as the result of intervening social prejudice. Such as with Catholics and Jews. Yet the need for course correction does not expand the definition of religion. It simply creates more churches. What the US Supreme Court says in its decision in Hosanna-Tabor is that the foundational right to religious freedom in the US Constitution derives from the rights it says “the church” gained at Runnymede! Never mind the historical theological absurdities of such a claim. Given the scriptural reverence for the words of the US Constitution and a general theological conservatism there is no room for the development of doctrine—as in the British case. There is just faith in “the” church.
Historically speaking, one might say that when the US Court speaks of the church, it speaks in a distinctive American vernacular—one in which it is not a narrow high-church dogmatism that defines the church but an eighteenth-century evangelical separatism. The American church gets to both be the church and not be the church—that is, the European church—at the same time. (See Evan Haefeli, Against Popery)
Importantly, “the church” of American law is also underdeveloped because of the politics of whiteness. Chapter Four of my book is intended to retell the story of the whole, not to be the exception.
JR: Your example of the testimony you gave as an expert witness and the radically diverging outcomes of that litigation is a great example of the juridical instability the principle of nonestablishment can give rise to. The fact that some social context has a religious dimension or significance can lead to judges keen to avoid “entanglement” either deliberately overlooking the religious dimension, leaving a purely secular “residue” to be processed by the court as usual, or blanking out of the entire factual matrix for legal purposes, effectively removing the dispute from their oversight. The problem is that each approach can sometimes aid religious liberty and sometimes not. Stripping the religious dimension away from a teaching subsidy aids the liberty of a religious school. It just helps them deliver math! But strip the religious dimension away from the relationship between a minister and her church, leaving a secular residue of an ordinary commercial employment contract, with all its standard normative assumptions, and you infringe the liberty of both quite considerably. And yet, allowing the religious dimension to cover over the entire relationship, removing it, as it were, from the purview of law, also risks serious injustice. This is how British Judaism was treated before the mid-nineteenth century. It was legally nonexistent; legally impotent. That was not equal citizenship!
Nonestablishment is surely misunderstood if it is treated as a principle governing the relation between religion and law, or religion and education, or religion and public discourse more generally. It is not an end in itself, but a precept concerning the proper relation of the institutions of religion and the state, which needs careful crafting to secure the ends of religious liberty, along with other constitutional goods. You cannot do that without an appropriately nuanced understanding of the phenomena you are dealing with.
WFS: I would say the US case shows that nonestablishment is impossible if it is treated as an end in itself. And that, given the attenuation and fragmentation of religious life today in the United States, the “appropriately nuanced understanding” necessary to “secure the ends of religious liberty,” is therefore also impossible. These impossibilities lead me to question whether “the ends of religious liberty” can be secured. Reimagining community life today may require reimagining new ends.
JR: As you point out in Chapter 3, at the center of all these disputes is a question of the origins and implications of the corporate form. At times, you seem to be problematizing the religious and commercial corporate form without subjecting the state to the same critical gaze. You suggest that corporate personality is a fiction, but also that it is a privilege granted by the state. Where then, we might ask, does the state get its own corporate form from? Is it self-originating? Elsewhere you discuss Robert Cover, Mark De Wolfe Howe and mention a line of pluralist thinkers through John Neville Figgis and William Maitland back to the great German legal historian Otto von Gierke in defense of a much more organic view of corporation. I will nail my colors to the mast here: I think that law, and with it legitimate authority, are generated communally and customarily before being crystallized and expressed in formal law and instruments of governance. The corporate form of the state is indeed self-originating, but so is that of every other social group. The question is always how this law should relate to that law. It can try to dominate, placate, accommodate, embrace, extirpate. The assertion that there is just one law, and that it mediates all possible human authority, is simply one mode of victory that seeks to triumph by making the alternatives legally unthinkable. I wonder where you really stand on that question?
WFS: This is very helpful. I do not mean to exempt the state in any way. I agree with you that the state is not different. On the contrary. I think we are in desperate need of a non-statist legal imagination—one that empowers more communally and customarily derived law.
JR: I agree—and if anything we are increasingly in the place in both the United Kingdom and the United States in which citizenship within the state is the only robust form of communal identity. That makes us very vulnerable to political authoritarianism.
You understandably disavow any attempt to offer a normative thesis, but of course critique implies criteria, and by the end of your book I think there is at least an agenda for action. I want to say “Amen” to your call for genuinely exploratory dialogue on page 175, but is it law? If I can make a very “British” comment on US American legal culture, perhaps in particular we are up against the limits of adjudication. Should not the sort of nuanced solutions such a dialogue might lead to emerge through legislation? What then would our political cultures have to be like if such processes were to deliver? What role would constitutional rights have in shaping those processes of lawmaking? Or—if this is all hopelessly unrealistic—should we really be reading your book as an essay on the limits of law?
WFS: It is very difficult to be optimistic about legislative innovation in the United States today—or constitutional amendment—given the partisan divide, and perhaps our addiction to litigation. But I agree that more of these matters should be decided politically. In that sense, I agree with Justice Scalia’s opinion in Employment Division v Smith. One could argue that the legislatures have done a better job accommodating religious difference. Good examples would be the exemptions for sacramental wine during prohibition and the exemption for the use of peyote by state narcotic laws. Certainly sometimes legislation has expressed hostility to minority religious groups but those groups have ultimately usually done better legislatively than they have judicially. I do think that my book—and my thinking generally—about religious freedom reflects a perceived need for legal humility! We need to go back to school and learn law/religion differently. Paul Dresch quotes Don Davis as saying “Law is the theology of everyday life.” I find William Miller’s books on saga law to be helpful prompts to such work.
JR: I have always had mixed feelings about Employment Division v Smith. I take your point that it essentially redirects attention toward the legislature, and that the record here is generally more positive. Yet the risk is that laws get passed in blithe disregard to any need for the accommodation of minorities, and then given the stamp of judicial approval as “neutral.” That’s more or less what happened in our JFS case, which is in some ways a parallel to Smith. Perhaps what one needs is some sort of procedural solution, in which judges can, as it were, raise a red flag and require legislative reconsideration. That type of protection for constitutional rights is beginning to happen here in our own Supreme Court, but in a very piecemeal and elementary way.
WFS: The JFS case is fascinating for Americans. Just the notion of state-supported faith schools in a liberal democratic country is exotic. I myself have always been interested in how reluctant the justices of the UK court seem to be in this case. They seem as surprised as the rest of us to be issuing such a ruling—about who counts as a Jew—in the United Kingdom today. The solution to funding what we would called faith-based schools in the United States in the face of the no establishment mandate has been to, in effect, launder the money. State legislatures provide funds for parents to pay for private (mostly religious) school tuition through what are called school choice programs and then pretend that the choice made by the parents cleanses the state of any establishment problem. State money is only being used to promote freedom of choice! Who can argue with that? The further difficulty in the United States is that many of these schools were founded as what are known as “seg academies,” providing white children with an alternative to integration of public schools.
JR: I don’t think it’s quite fair to say that the Supreme Court decided who counts as a Jew. Nor is it an aspect of having state-supported faith schools. The Court had to decide whether it is unlawful discrimination to adopt an orthodox definition of Judaism in allocating scarce places in a Jewish school. Given that the law allows the application of a religious test in such a context, but not a racial test (as it does for church employment), the legal question arises whether the school is state-funded or not. The problem with JFS was that when drafting the equality laws no one stopped to think carefully enough about the complex interaction of race and religion in the daily life and practices of ethnoreligions such as Judaism. British judges cannot carve out new exceptions from primary legislation. But in my view they could—and should—have issued a declaration of incompatibility with human rights.
I take your other point about voucher schemes being used to avoid important ends of social integration, butyou sound rather skeptical of their “cleansing” effect. Isn’t there a danger that the state enfolds sectors of society and then secularizes them in the name of neutrality or nonestablishment? It has been argued that tax exemptions for religious charities are suspect for precisely this reason—an exemption is a benefit, that benefit comes from the state, and therefore it should not go to religion. The end point of that argument is the communist one, that education is a state responsibility, some of which is delegated to parents, who as state representatives must not teach their children any religion. Until very recently there was no question in anyone’s mind but that education is inherently “religious,” or worldview-inflected. You can have pluralism within one school or pluralism between schools, you can even have a negotiated compromise. What you can’t have is some sort of imposed “neutrality” that is legitimate because it rises above the competition. Allowing for both faith-based private schools and faith-based schools in the state-maintained sector recognizes that. Just because the funding is derived from taxation doesn’t automatically make its application in support of religious plurality and compromise illegitimate.
WFS: I am skeptical of the individual choice model of distributing public funds with respect to education—and tax exemption for charities as well. Not necessarily in principle, but at least as it works in the United States. We are so fractured as a society that devolving so much that is important into the private sphere is seriously threatening our capacity to work together for the common good in many areas—or even to have a common appraisal of what needs to be done.
I think you and I would agree that all real education is—in the largest sense—religious and that a pretense to neutrality pernicious. But, in my view, the word religion cannot do the work of managing pluralism any more in the United States, in schools or elsewhere in public life. To be a bit grandiose, we need to reimagine the religiousness of the human in the light of multiple failures.
Those on the right and the left who would argue for a thoroughly secularized public education may imagine that schools can just teach skills, leaving moral and religious education to families but they have a rather impoverished view of education and of public life. Such a separationist position is exacerbated in the United States by the fact that education is locally administered and funded primarily through property taxes so that there are wide disparities in the quality of public education.
Let me return to your interesting point about the JFS decision and the obligation you see for the justices to have noted the incompatibility of existing law with human rights. In the US, of course, we have a cramped view of the relevance of international law—and there is little deference to international human rights norms. Indeed, there are those who believe that such deference would be unconstitutional.
JR: It’s true that US hostility to international human rights law looks unnecessarily insular to an outsider. The question is whether freedom of religion (whether derived from the US Constitution or the ICCPR) is capacious enough to protect the beliefs and practices of those for whom “religion” has quite a different relation to personal identity than it does for Protestant individualists. But to come back to religious groups, when reading Hosanna-Tabor I was struck by the very brief comment towards the end that religious organizations are not necessarily exempt from other suits such as those in contract or tort. There is curious throwback here to older notions of a “natural” private law in resistance to the “artificial” law of the state, including, presumably, the Americans with Disabilities Act. But the basic question is too important to be glossed over so quickly: How can we justify the application by the state and its institutions of this part of its law to religious organizations and not that part? Why contract, tort, property, and personality, but not antidiscrimination? That is surely the question the Court should have answered.
WFS: The line between the non-applicability of antidiscrimination law to churches and the status of the rest of law is very much a question just now in the United States. The sex abuse cases loom over this issue and were brought up at oral argument in the Hosanna-Tabor case—and deferred to another day. In my conversation with Linda Greenhouse for this forum, she expressed a nostalgia for a time when the justices used to respect the “play in the joints” between the two clauses—or what one would call a kind of gentlemanly agreement not to go too far in either disestablishing or in protecting free exercise. One difficulty with that principle, of course, was the ways in which it enabled the persistence of the church-in-law!
You say “we must do the hard work of clarifying what the ‘law of organized religions’ is to be.” In the United States we have agreed to do without ecclesiastical law.
But let me ask you a question. I sometimes find myself having what you might call establishment-envy. Maybe partly because I was brought up in the Church of England. Having an established church—however attenuated—locates the issues in a helpful way. There is someone in charge, whether or not you agree with them. In the United States, lacking a church or a state, really, it is we, the people, who are in charge. All of our problems—including our inability to deal with the pandemic—sometimes seem to derive from our constitutional commitment to limited government and nonestablishment. I doubt this is just an American disability. How long will the British stand for the establishment church?
JR: That’s a really interesting question! On one hand, the levels of popular support for the Church of England—even in the most attenuated sense—are lower than ever and still dropping. On the other hand, the Church of England, and to some extent of Scotland as well, are closely intertwined with the monarchy. Cutting those connections is, in terms of sheer practical politics, very difficult. What is more likely to happen is a sequence of minor changes that gradually render the established Church less and less significant. If House of Lords reform finally ever happens—we have only been discussing it for a hundred or so years—the bishops may well not survive. Reform to marriage law is on the cards, and the distinctive Anglican process may not survive either. Coordinating chaplains are no longer necessarily Anglican either. Point by point the marks of legal distinction slip away until in strict law, if not in popular consciousness, there is no real difference.
The important question to my mind is what would replace an established church. In some ways, the Church of England has functioned in recent decades as a guarantor of a certain sort of public role and space for religion, and not just for other Christian churches. It has preserved a liberty that is not purely private. There is no reason why “disestablishment” should undermine this. It did not in Germany, for example, not to speak of the nonestablished position of the Church of Ireland and the Church in Wales. And yet I wonder if the fact that it is just one Church that is established in England has not had a paradoxically benign effect as compared with a set of even the most optimal of general constitutional principles. Its acknowledged oddness, its concrete particularity, its need constantly to stretch the boundaries of theological acceptability, all coupled with an ever-growing sense of responsibility for protecting all forms of religious expression, has opened up practical possibilities in law and public life for a wide range of religions. The twentieth century has been very different from the nineteenth in that respect—when the Church of England fought its corner with vigor! And in that sense this sort of contemporary religious establishment may do more for religious liberty than its supposed opposite.
WFS: Maybe we only value things when they are almost gone?
JR: Or, perhaps, unprincipled and messy solutions are sometimes optimal? That’s another aspect of the limits of law.