Toward the end of her Burwell v. Hobby Lobby dissent, Justice Ruth Bader Ginsberg finally gets to the heart of the problem. Describing a slew of contentious claims that might follow the Court’s decision, she asks, “Would RFRA [Religious Freedom Restoration Act] require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not?” Yes, a chorus of religion scholars might respond, how indeed? How can the Court possibly countenance all the claims advanced under the mantle of religious freedom without drawing some highly questionable distinctions? How can it possibly demarcate the limits of religious freedom without deeming some beliefs more worthwhile than others? Lines will have to be drawn.
For many scholars, the Hobby Lobby case offers yet another example of the futility and fraught nature of the category of religion, for there seems no obvious way out of Ginsberg’s bind. As Winnifred Fallers Sullivan has repeatedly argued, to protect religion is to define it, and legal definitions have regularly functioned to sort out good religion from bad, acceptable modes of piety from unacceptable, even loud from quiet. Whether judges analyze claims in terms of plausibility, substantiality, or sincerity—standards applied in different ways throughout the Hobby Lobby decision—they end up engaged in precisely the kinds of theological and normative inquiries that they claim so strenuously to want to avoid.
Sullivan concludes from this that “religion” has outlived its usefulness as a legal category. Because there can be no fair way of demarcating its boundaries, she proposes that its value has been exhausted. But that does not seem quite right. Though I appreciate the analytical force of her argument, I would agree with Russell McCutcheon that her account instead reveals how religion is now “more useful than ever.” The political forces mobilized around religious freedom since Employment Division v. Smith (the peyote case) have found religion to be an eminently malleable category that can be deployed to advance any number of competing ends, and the practical logic governing these practices has spilled well beyond the arena of constitutional jurisprudence. At a time when even National Football League referees are expected to distinguish between heartfelt performances of religious piety and excessive displays of secular exuberance, it hardly seems likely that religion could be on its way out. It remains far too useful, whether theoretically consistent or not.
One task for religion scholars, then, is to analyze whose interests are served in the varied ways religion gets deployed. Here we find something interesting, especially when we consider the one point on which Hobby Lobby majority and dissent appear to agree. Behind all the partisan bickering, we find a common valorization that has actually been percolating in the Court’s decisions for quite some time: the idea that real religion can be “known” not by virtue of its form, content, or substance, but by the rigidity of its claims.
Consider, for example, how for all their differences, neither Justices Samuel Alito nor Ginsberg ever challenges the sincerity of the Green family’s beliefs. Ginsberg questions the substantiality of the burden imposed on them but professes respect for their genuineness. Alito likewise maintains that the Court must take the family’s claims seriously, no matter—or perhaps precisely on account of—how unreasonable they might seem. Put differently, it is as if he thinks their manifest unreasonableness offers the strongest evidence for the depth of their conviction.
Contrast that with how the Court treats other groups who enter its decision in more and less oblique ways. For example, in section III.B.4, Alito refutes the contention that courts will not be able to assess a for-profit corporation’s sincerity by pointing to the much “harder” case of inmates. Noting the wide scope of protections afforded by RFRA’s successor, the Religious Land Use and Institutionalized Persons Act, Alito writes, “If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seemingly less difficult task of doing the same in corporate cases.” Perfectly reflecting our neoliberal moment, Alito takes as self-evident that corporations should enjoy a greater presumption of credibility than the millions of individuals currently incarcerated in American penitentiaries. As Joshua Dubler has described, prisoners stand here, as they often have, as the archetypal men of bad faith, their past deeds admitted already as evidence against them, the imaginativeness of their claims inevitably interpreted as proof of their frivolousness.
Yet we have learned more recently that prisoners can also be held suspect for the very reasonableness of their claims. Consider the oral arguments in Holt v. Hobbs, testing a Muslim prisoner’s right to grow a half-inch beard. The justices claimed to find the case “too easy” to decide because Holt had refrained from growing a full beard, as allegedly dictated by his faith. While a full beard might pose genuine security concerns, the justices deemed a half-inch beard perfectly reasonable. And the very reasonableness of Holt’s request aroused Justice Antonin Scalia’s suspicion. “Religious beliefs aren’t reasonable,” Scalia explained. “Religious beliefs are categorical. You know, it’s ‘God tells you.’” Real religion, Scalia informs us, is absolutist, inflexible, resistant to compromise. It does not consent to a half-inch when only full-length will do. The half-inch beard offers a poor measure of religious freedom, therefore, for it signals only the shallowness of Holt’s convictions. For Scalia, a half-inch beard can only mean its bearer lacks commitment.
In a similar vein, consider Justice Ginsberg’s reference to Bowen v. Roy in her Hobby Lobby dissent. Bowen was a 1986 free exercise challenge to the government’s use of a Native American child’s Social Security number when administering benefit programs. The Court found no substantial burden had been imposed on the father’s belief that such use violated his daughter’s spirit, and Ginsberg approvingly cites this decision to distinguish the standard of substantiality from sincerity. (In passing, the irony should be noted of Ginsberg using a ruling against Native American claimants to try to limit the scope of RFRA, which many liberals initially supported in order to protect the rights of a different set of Native American claimants.) Though it is technically true that the Bowen Court accepted Roy’s sincerity, Chief Justice Warren Burger, writing for the majority, emphasized that Roy had only “recently” come to hold his beliefs, that he, his wife, and other daughter all had previously obtained social security numbers, and that Roy had changed the nature of his claim when presented with new information—on the last day of trial—that his younger daughter already had been assigned a social security number without his knowledge. In short, Burger did everything short of expressly challenging Roy’s sincerity, and it is hardly farfetched to imagine that these factors undermined the seriousness with which the Court regarded his claim. It seems that Roy, too, was ultimately found wanting in conviction.
All of this is to suggest that while the Hobby Lobby opinions can certainly be framed within a culture wars narrative pitting liberals against conservatives, and corporate interests versus women’s rights, the case also reveals a profound—and troubling—point of agreement across these divides. What the justices on both sides really seem to distrust is inconstancy, inconsistency, and wavering commitment. Or, put differently, when it comes to religion, the Court’s justices seem particularly suspicious of reasonableness, of flexibility, even of pragmatic compromise. (It could be added that this seems as true in politics as in religion. Note how both majority and dissent treat the exceptions carved out of the Affordable Care Act as undermining the depth of the government’s commitment rather than as laudable concessions to the practical realities of politics in a democracy.)
In other words, what the Court denigrates is precisely what many “lived religion” scholars find most interesting, namely the productive tension between norms and practices, the varied ways that individuals negotiate their religious lives from within disciplinary power structures, or, put more simply, the fact that inconsistency is not tantamount to hypocrisy. The Court deploys “religion” in a way that serves the interests of those who would define it in its most absolutist or rigid forms. It turns religious freedom into a tool for enforcing orthodoxy, allowing little space for difference and dissent, let alone inconsistency and inconstancy. This tendency is even reinforced by Justice Ginsberg’s contention that religious organizations exist to foster “the interests of persons subscribing to the same religious faith,” thereby collapsing internal heterogeneities into an idealized model of communal consent. As Elizabeth Shakman Hurd has suggested in a different context, there is often far “less space for diversity in a world of official religion.”
There is great irony here, of course, for it is precisely its alleged absolutism that also has made religion so suspect in the eyes of the government. Its unwillingness to compromise stands both as defining feature of the phenomenon to be preserved and as key aspect of the type of religion to be targeted by American projects of religious reform, that most in need of “moderation.” It is precisely religion’s immoderateness, in other words, that we have been taught both to admire and fear. In this way, defining religion in terms of the rigidity of its claims serves to render it as both object in need of protection and source of particular concern. What it arguably does not do is make religion more “free.”
In an influential 1983 essay, Robert Cover faulted the Court for its lack of “commitment,” for its failure to commit itself to a particular vision of the law and its normative values. But the problem in recent religion cases lies more in the degree of commitment that the Court expects from everyone else. The problem lies with a Court that equates sincerity with consistency, flexibility with infidelity, compromise with faithlessness. And therein lies the real impossibility of religious freedom, for who could possibly live up to its impossible standards?
Thank you to Joshua Dubler and Benjamin Schonthal for comments on earlier drafts of this essay.
It is quite entertaining to watch soi-disant experts in religious studies, a field that appears to rival economics in its imperialist zeal to subject any issue, no matter how tangential, that intersects with “religion” (a category, we are constantly reminded, that dare not speak its name lest it commit the sin of essentialism thereby “reinscribing power”, one of the many conceptual tautologies that critical theorists venerate as if it were some profound mystical truth revealed by St. Foucault as the worst transgression in the Church of “Critical Theory”) opine at length critiquing supreme court decisions, without any regard for legal theory, jurisprudence, or even basic technical knowledge of the legal system that every 1L at even a mediocre law school has drilled into them. By treating these decisions as “texts” to deconstruct, “problematize” and subject to mind numbing post-structuralist torture that the CIA would envy, these articles are almost a cliche at this point – just substitute another “text” as the ostensible subject of analysis, rinse and repeat, and you have another “critique” trapped in its own nihilistic epistemic bubble.
Law schools have traditionally emphasized professional training and pedagogy since their students overwhelmingly become practicing attorneys upon graduation. There have been attempts to import the theories and methods of social science and the humanities into the legal curriculum with little success. Indeed, a few critical theorists had some limited success in establishing redoubts in a few elite schools – Critical Legal Theory and its even more unruly stepchild, Critical Race Theory. These were more known for the shock value of their attacks from a radical Left, usually some variation on Marxism, on the liberal sacred icons of legal realism, such as judicial review and civil rights legislation, presaging similar attacks from conservatives a few years later. There were lots of articles published in law reviews that almost no one read, except other Crits, since they were useless for practicing attorneys, especially public interest attorneys who were embedded in various new social movements, such as feminism, gay rights, etc. The Crits, influenced by the many permutations of critical theory that exploded in literary theory and humanities departments, soon began to train their rhetorical ire on the legal strategies of those same new social movements, often viciously attacking the lawyers hired by the movement activists who were challenging discriminatory laws in court, which the Crits proclaimed were not only insufficiently radical but actually counterproductive because of potential political backlash.
etseq: If you think Professor Weiner has wrongly captured Alito or Ginsberg’s thinking, or the relevant issues in the Bowen or Hobby Lobby cases, I am sure he and his readers would benefit from those corrections. What is unhelpful is a rant about Foucault & Friends, a rant which has become by now so familiar in its vacuity as to become the ultimate cliche. Weiner offers in this short post a searching exploration of how religion is consistently conceived (and misconceived relative to the best humanistic scholarship) by SCOTUS. Since scholars of religion are often called to provide expert testimony, it seems reasonable to imagine that The Immanent Frame might be a productive space to consider ways such researchers might responsibly serve such capacities. But even if his thinking has no pragmatic effect on SCOTUS or American jurisprudence or practicing attorneys, it still is valuable in its effort to consider anew how we come to decide what kind of behaviors receive the commendation (and, in some contexts, condemnation) of religion. If this kind of thinking is not of interest to you, then I highly recommend instead SCOTUSblog (http://www.scotusblog.com/), the Law Blog (http://blogs.wsj.com/law/), or Volokh Conspiracy (http://www.washingtonpost.com/news/volokh-conspiracy/), each of which hosts scholars with in-depth knowledge of legal theory, jurisprudence, and the contemporary legal system evaluating current and upcoming cases. The Immanent Frame has a different intellectual purpose in its assessment of such materials, namely to think about the broad historical, sociological, anthropological, and philosophical contexts into which such a system emerged and became understood as one critical source of bureaucratic and social reason.
Dear Esteq, Esq.,
According to you, law is an esoteric discourse with a logic that is intelligible only to initiates with specialized training. That sounds like a big problem in a democratic society in which we are all expected to live under the law. How do propose to fix that?
If you know 2 out of 3 The Immanent Frame commenters on a post that cites you along but which also has a comment that bashes Foucault do you win something?
Let me add some perhaps more specific and respectful questions about Professor Weiner’s post. They come, for what it’s worth, from a legal scholar who writes a great deal about law and religion, not an expert on religious studies. I do read a fair amount in that field, respect it, and believe there is much, at least on a larger theoretical and empirical level, that lawyers and legal scholars can gain from reading it. None of that ought to be relevant, of course, but given the initial exchange here it seemed worth noting.
1) It’s not clear that Hobby Lobby advances Prof. Weiner’s thesis about the Court coalescing around the idea that “real religion” can be identified “by the rigidity of its claims.” I see no strong evidence in the majority opinion that Justice Alito believes the Court must take the plaintiffs’ claims seriously “precisely because” of how “unreasonable” they are, or that Alito “thinks” that the “manifest unreasonableness [of the claims] offers the strongest evidence for the depth of their conviction.” This is so, I think, regardless of how Prof. Weiner defines “manifest unreasonableness,” although I don’t see any clear definition of that label in his piece.
2) To add to that point, sincerity was not seriously at issue in the Hobby Lobby case. As the majority notes, HHS conceded the plaintiffs’ sincerity. The Court thus did not need to–and did not–argue over whether the plaintiffs’ claims were rigid, loose, or anything in between.
3) Compounding this point, the Court in Hobby Lobby does cite its own opinion in Thomas v. Review Board, 450 U.S. 707 (1981). There, the Court rejected the argument that the plaintiff’s religious claim should be denied because Thomas was “struggling with his beliefs,” was unable to “articulate” those beliefs “precisely,” and arguably drew the line between religiously permissible and impermissible conduct in a less rigid and more permissive place than others belonging to his denomination. The Court said in that case, “Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.” All it looked for was evidence of an honest religious conviction on the claimant’s part. Rather than demanding rigidity in his views, it accepted his claims despite their fluidity, relative permissiveness, and inarticulateness–in other words, despite their lack of rigidity. The Court’s approving citation of Thomas in Hobby Lobby, among other relatively recent cases, tends to undermine rather than support the “rigidity thesis” advanced here.
4) I am happy to acknowledge that there is room for disagreement on this next point. I think Prof. Weiner overstates his point–which in any event does not have much to do with rigidity–when he argues that the Hobby Lobby Court “takes as self-evident that corporations should enjoy a greater presumption of credibility than the millions of individuals currently incarcerated in American penitentiaries.” Alito simply states that if *Congress* thought *the Court* was capable of distinguishing between sincere and insincere religious freedom claims by prisoners, it is unlikely that Congress thought the Court was incapable of making the same determination by closely held corporations. His opinion does say that the task of distinguishing between sincere and insincere claims would be “seemingly less difficult” in the case of closely held corporations than in the case of prisoners. This is the apparent textual hook for Prof. Weiner’s argument. But it does not do so groundlessly: it cites evidence of substantial numbers of frivolous claims filed by prisoners. This is hardly an unknown phenomenon, and Prof. Weiner does not argue here that all those claims are in fact non-frivolous. Nor does the Court erect any particular presumption of credibility for either closely held corporations (or non-profits, or any other type of body) or prisoners who make religious claims. I understand that Prof. Weiner *has* a textual hook and he is welcome to make arguments on that basis. But I seriously doubt this hook can bear the weight of the conclusion he attempts to hang on it.
5) I’m confused by Prof. Weiner’s treatment of the oral argument in Holt v. Hobbs, the recent prisoner beard case. He is right to quote Justice Scalia’s rather silly statement during that argument, but there is no basis for thinking that the rest of the Court agrees with Scalia on this. Prof. Weiner is also struck by the use of the words “too easy”; he shouldn’t be. The Court decides cases largely in order to issue general rules that will guide lower courts in future cases, not to resolve individual disputes. Because Holt’s beard length presented little serious risk of future danger due to concealment, the case presented little basis for the Court to evaluate where to draw the line in future cases. Holt, in that sense, presented a poor vehicle for the Court’s job of finding a workable rule. But only Scalia indicated any suspicion of Holt’s claims at all. Even as to that, it is dangerous to assume that questions asked during oral argument represent a justice’s own views at all or, if a statement *does* represent a justice’s view, that the view is strongly held. Judges often use oral argument to pose hypotheticals, challenge lawyers, and test their own intuitions. Certainly none of this is strong evidence of a “percolating” view on the Court as a whole that rigidity makes a religious claim more likely to be “religious.”
6) Bowen v. Roy is not terribly helpful to Prof. Weiner’s thesis either. For one thing, I find it doubtful that any current member of the Court is much influenced in his or her own thinking by the writing of Chief Justice Burger, on any issue; thus, whatever Burger wrote almost thirty years ago in Bowen is unlikely to provide much evidence of any percolation on the part of the Court as a whole. Prof. Weiner argues that although that case “technically…accepted Roy’s sincerity,” Burger’s actual writing indicated skepticism of the sincerity of the claim. As I said, however, the current justices are unlikely to care much about any dicta by Burger. Bowen is now relevant for its “technical” holding, and it’s for this that Justice Ginsburg (not “Ginsberg”) cites it. And that holding had little to do with the seriousness of Roy’s claim; then and now, its importance has to do with the impossibility of accommodating and remedying these kinds of claims, *even if* they are completely serious and sincere.
7) Professor Weiner makes some broader claims in the last four paragraphs of his post. I find them interesting and valuable and hope to think more about them. I do think they are mixed in with some claims that are potentially weaker. It is true that the Court, like many other people and institutions, has difficulty describing and navigating the complexities of “lived religion.” There is much in this particular area from which legal scholars dealing with church-state law could benefit from reading and encountering religious studies scholars. But that general statement does not necessarily support some of his specific judgments about the Court. This comment is already too long to add to it here. Suffice it to say that I do not think Professor Weiner has provided adequate evidence that the present Court “equates sincerity with consistency, flexibility with infidelity, compromise with faithlessness,” or that it believes that “inconsistency” is “tantamount to hypocrisy.” My own reading of the evidence leads me to conclude that this thesis, while interesting, is not accurate. Of course there are many other grounds on which to criticize or praise the Court; I’m just not convinced this is an especially strong one.
Reply to etseq: The whole of your rebuff to Isaac Weiner’s post is quite mind-numbingly Law School-ish in it’s accusatory style. So much for critique and thought then. All one need do from that jumping off place is concoct some plausible fallacy for a safe landing on a shred of doubt. Just doesn’t work outside courtroom tactics and politics.
In truth, Weiner has elucidated the tangled web of jurisprudence the Supreme Court has spun for itself in it’s attempt to avoid offense without seeming too reactionary by those who know all too well how to foment controversy and divisiveness. He has revealed a near impossible conundrum that must be confronted; how to deal with religious “freedom” constructively in an open society. This a societal responsibility, not a lawsuit.