We are asked in this forum to think beyond “the primarily legal, administrative, criminological, or psychological” ways in which the sex abuse crisis has been framed to “the specifically religious grounds on which the abuse arose, as well as about what the crisis teaches us about religion and the study of religion.” While greatly admiring the other pieces in this series and the humanist sensibility and critique that pervades them, I will suggest in this essay that it is, in part, the very dichotomy between the legal and the religious, what I will call separationist thinking, that hobbles our capacity to think clearly about what happened and why. I will suggest that there are not, on the one hand, “specifically religious grounds” apart from the legal or, on the other, “primarily legal” ones apart from the religious. The two are deeply implicated, one in the other. The sex abuse crisis is, in some sense, also a church-state crisis.

One of the clearest memories I have from the time when these matters were breaking in the news is of an encounter I had in the hall of the University of Chicago Divinity School. The air was thick with the subject of clerical sex abuse. Passing me in the hall, my interlocutor said, simply, “Call the police.” That was the entire conversation. I have not talked about it with him since. I am not even entirely sure what he intended, but I will take him to have been invoking a very American separationist model of church-state governance. Sexual abuse of minors, he implied, was police business, not church business. The entire matter could be resolved if everyone simply agreed to acknowledge the state’s jurisdiction over such situations and called the police.

Various historical, sociological, and psychological reasons can be offered for why the police were not initially called. Yet it is not just that almost no one called the police at the time. Even now, even after the police have been called, to read the documents in the BishopAccountability.org archive with the eye of a lawyer is immensely dispiriting. While some awards have now been made, law has mostly been used to obfuscate and protect the church from harm. The church has attempted to manage these events without the secular authorities—through invocations of canon law, private negotiations, and confidentiality agreements—while the secular authorities seem to have been paralyzed by a stilted respect for the clergy, an imagined constitutional prohibition, the he said/she said quality of old memories, statutes of limitations, and a lack of clarity as to under what legal theory bishops might be held accountable for the actions of their priests.

I have come to think that the impulse to see the police as the solution masks a more fundamental problem. We live, after all, in the wake of the police having been called, and many priests having gone to jail. Many in the church remain deeply unsatisfied. Why is that?

As we explored during the intense couple of days of the Yale conference, what is now termed “the sex abuse scandal” can be seen as a point of convergence for a particular set of contemporary practices that grew up over the course of the twentieth century in American law and American religion. While this crisis is related historically and structurally to other times and places in human history, the scandal of this situation reveals a number of well-documented weaknesses in very specific institutional and interpretive contexts, including that of American law (selective prosecution, misuse of discovery, insufficient protection for children, exclusionary evidentiary rules), the U.S. Catholic Church (sexual and political naïveté, poor seminary training, administrative secrecy, and authoritarianism), and the corrosive effect of social scientific discourse. Finally, this crisis also highlights the ongoing inability of the U.S. to find a satisfactory arrangement for the legal regulation of religion and of religious freedom. (I will speak here of the U.S.; other related but distinct religio-legal stories can be told about the other countries in which clerical sex abuse has been documented.)

The received story is that the U.S. achieved religious freedom through the disestablishment of the churches. We nailed this one. Churches would attend to training virtuous citizens, and the state would attend to politics. Citizens would be free to worship as they chose. The state would protect private property. From the beginning there was friction about how Europe’s established churches, imported into the Americas, would function legally and politically in a democratic country without their accustomed formal relationship with government. But that, too, is now told as a success story. One triumphalist version is that the American Catholic Church, after having been sneered at in the nineteenth century by the Vatican for its questioning of the doctrine that salvation was only to be found in the church, traveled to Rome during Vatican II—in the person of John Courtenay Murray—and taught the church that religious freedom could be Catholic and that the church could flourish in a democratic society. It was a proud moment for the American bishops.

There remained unfinished business back home, however. The meaning of the religion clauses of the First Amendment was not nearly as clear as had been intimated by Murray. At the time of Vatican II, the U.S. was in the middle of what turned out to be a fifty-year experiment with tidying up church-state separation. During this time, the Supreme Court insisted that religion be separated and that, at least in some cases, religious exercise not be burdened by law. Religious freedom meant secular public institutions and a limited legal space for voluntary religious affiliation. But it now turns out that the Court didn’t really mean it. And perhaps the church didn’t really mean it either.

The Supreme Court has now apparently abandoned its effort at thoroughgoing separation. Today, the patchwork of regulatory privileges and silences that have, over two hundred years, largely enabled religious institutions to govern their own without secular intervention—to have a little piece of sovereignty, as it were—to get a legal pass from the authorities—to limp along with the tatters of their former hierarchical glory wrapped around them—remains largely intact. Whether it is Mormons, haredi Jews, Catholics, or even plain vanilla Protestants, religious folk in the U.S. benefit from a range of laws that make a special legal place for religion: tax laws, labor laws, zoning laws, etc. These privileges are numerous and they exist at many levels of government—municipal, state, and federal; there are thousands of protective laws. While there are challenges to this regime—and other private zones like the family, the university, and the hospital, which have also been penetrated by law—there is wide public support for the continuation of such privileges. At the same time, public support for and funding of religious ways of life and institutions have become plausible.

Having firmly rejected as impracticable the dominant European solutions of either single or multiple religious establishments, in which the division of public labor was expressed through jurisdictional arrangements, the U.S. embarked on an arrangement in which the churches would be formally as free of government support and oversight as possible. The “separation of church and state” is now supposed to have solved the problems of both government corruption of religion and of religious corruption of politics. Religious folks are supposed to take care of religious business and government folks are supposed to mind government business. On this model, the sex abuse scandal was a failure of practice, not a failure of theory.

The as yet incomplete archive we reflected on at the Yale conference is a cache of documents from the ongoing litigation, mostly brought by victims of abuse against their abusers, as well as from grand jury investigations, prosecutions by public authorities, and internal church investigations. Some documents concern abusive encounters that occurred many decades ago; some concern recent abuse.

If our proposed purpose is to focus on the specifically religious, what do we make of the fact that we are reading mostly legal documents in which the words of both victim and abuser are profoundly framed and shaped by legal reasons, at times, actually drafted by lawyers? Even the internal church documents are profoundly shaped by law, both U.S. law and canon law. Why can’t we speak the words of religion? The answer is complicated; partly it is because litigation, especially tort litigation, is the lingua franca of American faultfinding. But, more importantly, it is because there is no purely religious language. The church and the state grew up together, embraced Roman law, and developed bureaucracies and discourses about human motivation and causation that are deeply and mutually implicated.

There are two strong interpretive positions in the contemporary U.S. with respect to the future of the religion clauses. They suggest different responses to the sex abuse scandal, as they do to other current moral and political debates. Neither offers a legal model for taking religion seriously in a diverse society.

One position holds that all privileges and special treatment for religion should end. Religion is not special. Every person should be equal before the law, and the churches should be no different. For proponents of this position, religious freedom is defensible only insomuch as it is about individual religious freedom and is continuous with freedom of expression and association. Religious communities should simply exist in a legal sense as voluntary groups of like-minded individuals who can enter or exit at will. They should be subject to all laws, including the tax laws, as everyone else is. They should not be protected in their perpetuation of patriarchy and secrecy. Separation, on this model, means individualization and neutralization of religious reasons.

The other position holds that protection for religious liberty should focus on the church, not the individual. Churches, it is said, need more, rather than less, institutional integrity. They need autonomy. Religious liberty is, on this reading of the Constitution, about the freedom of religious institutions to define and govern themselves and their members. The newest Supreme Court decision, Hosanna-Tabor v EEOC, gives some support for this position, affirming, as it does, the constitutionality of the ministerial exemption—which exempts churches from laws against discrimination in employment. Adopting the critique of the Enlightenment subject as an affirmation of their authority, church autonomy will enable the churches to take on responsibility for policing their own. Confident that religious business can be separated from law business, as sin from crime, religious liberty can, on this theory, largely be reduced to a question of jurisdiction.

Let us now go back to the archive with these two positions in mind. The first position understands the sex abuse scandal to be a failure of law and of state oversight. The relationship of lay Catholics to the church should be regulated in the same way as in all other private institutions. Children should be taught to be wary of the adults in the church as they should be of all other adults, and there should be transparency and openness about their interactions with them. Priests should not be recognized by the state as sacramentally ordained within an alternative normative order, but as workers subject to law. Sex abuse in the church would be seen to be of a piece with such abuse in other institutions.

The second position understands the sex abuse scandal to have resulted from contamination of the church by secular culture and values, and it should be addressed by a redoubling of church discipline. This regime acknowledges, perhaps under duress, the need for the reporting to the police of any harm to children, but it is the church that should recognize (and it alone decide) when its clerical employees have broken a law and forfeited priestly privileges. At that point, the priest would be turned over to the secular arm. (This legal arrangement has a long tortured history, of course, and is a history strewn with martyrs.)

Surely each of these positions is, in its own way, a profoundly inadequate response to the massive pain evident in these events and, more generally, to the gaps left by the modern church-state settlement. In each position, authority is misrecognized and mislocated. The first, overly confident of the possibilities of progressive law reform simply refuses religious authority of any kind; the second, founded in a narrow Christian sectarianism, abdicates any responsibility for participation in a serious dialogue about the larger common good.

As we heard at the conference, the church that the priests and kids in these cases inhabited was not just a voluntary organization like the Boy Scouts. It claimed to sacralize and ritually encompass everything, including sexuality. Being Catholic was “awesome,” one speaker said, and by that he meant to invoke the power and ambivalence of the sacred. For canon lawyers, this church administered a higher “universal law.” These are strong religious claims indeed, grounded in a complex mythological imagination—claims that are also highly contestable; but analogous claims can, of course, be made in all of the many religious cultural idioms of the world. How can the powerful majesty of the universal church—or of any other mystical reality—fit into the cramped spaces of multi-faith religious freedom as delineated by the international instruments? What kind of church would that be? And what kind of state? What kind of legal personality can the church have under these laws? And what kind of religious personality can individuals have? Must all religions trim their sails and reinvent themselves as subjects in the secular state? Would such religions offer any real models of life to contemporary society?

One of the difficulties with the stale debate about the meaning of the First Amendment religion clauses is that both sides see sovereignty as a zero-sum game. Liberals seek to protect human rights through a strong evocation of state sovereignty on behalf of the individual. Church autonomy advocates want a piece of that sovereignty. They want to carve up the available authority between church and state, preserving their peculiar customs from public scrutiny.

One cannot help but think of Wendy Brown’s recent claim that walls are a feature of the waning, not the waxing, of sovereignty. What we see in these files are the clunky remnant of church sovereignty from a bygone age bumping up against the clunky sovereignty of a state, also from a bygone age. Both are the product of the same modern legal history that began with the re-discovery of Justinian’s Institutes in the twelfth century and ends with the building of walls. The so-called secular law contains embedded and outdated religious anthropologies and cosmologies, while the religious law is strangely similar to the secular law in its reliance on process and indirection and the primacy of the protection of property. Each strives to exclude the other. It is not surprising that they worked so well together to further obscure the abused children.

Legal regulation of religion is a pressing issue today, as new constitutions are being drafted following the Arab spring and other revolutions. They—and we—are being challenged to think differently about religion and law. Tolerance may be in our DNA, as Robert D. Putnam and David E. Campbell argue, but we have not really absorbed the profound losses that this genetic program entails. We need, together, to re-imagine governance in a space that Julian Rivers describes as being “between establishment and secularism.”

Serious crimes have been committed, yet there is more than a whiff of a witch hunt to some of these proceedings. That is a product of a particular American religious history but it is also a product of the American style of tort litigation and its partnership with the media—and of the increasing penetration of law and psychiatric treatment into the intimate relationships of our lives. Calling the police will not compensate for the poverty of our will and imagination when it comes to reforming our capacity for shared governance in a world of highly plural and fragmented religious identities and activities. Bringing the pope before the ICC will not repair our loss of faith or our loss of participation in the sacred mysteries and the tight logic of salvation. All the psychiatrists in the world cannot restore the unity of the universal church or of law. We need to stop thinking in terms of separationist dichotomies. It will not be easy.

Special thanks to Nancy Levene and Barry Sullivan for their comments on earlier drafts of this piece.