Note: This conversation took place via email between July 8 and July 30, 2020.
Leora Batnitzky: I love your book. While you build on some important historical scholarship, I think your argument is really revolutionary for thinking about religious freedom in the United States as well as around the world. Your book challenges two major, and generally opposed, models for thinking about religion and politics: Carl Schmitt’s and Karl Marx’s. We can see this by bringing your book into brief conversation with Ernst Kantorowicz’s classic book The King’s Two Bodies (KTB).
Kantorowicz notes that his research for what became KTB was prompted by his confusion over a publisher’s imprint of an offprint of an article that he had received in the mail. The imprint was “The Order St. Benedict, Inc.” As he writes “nothing could have been more baffling than to find the abbreviation Inc., customary with business and other corporations, attached to the venerable community founded by St. Benedict.” Kantorowicz was further shocked to discover, when he queried his friend, Berkeley law professor Max Radin, that “indeed the monastic congregations were incorporated in this country, that the same was true with the dioceses of the Roman Church, and that, for example, the Archbishop of San Francisco could figure, in the language of the law, as a ‘Corporation sole’. . . .’” Church State Corporation does for American history what The King’s Two Bodies does for medieval Europe while also following through on exploring the initial American impetus for Kantorowicz’s book. Your arguments do nothing short of asking Americans and others to completely rethink the relationship between corporate bodies, law, and religion.
Your analyses challenge the Schmittian impulse to view the modern, liberal state as nothing more than the denial of the codependence of politics and theology. Like Kantorowicz’s, your book presents the relation between religion and law as far messier than Schmitt’s analysis would suggest. It is worth recalling that Schmitt explicitly rejected any similarity between the church as a juridical person and corporate bodies as such by insisting that the sovereign could only be a singular individual and that to speak about corporate bodies is only to trade in abstractions. By focusing on not just church and state but also corporation, your book moves beyond many current discussions of political theology inspired by Schmitt. As you show, church, state, and corporation are best understood as “alternate forms of sovereignty” that often compete with one another. This is because, “Disestablishment in the US has meant that church and state are each conceived of as governed by the people. It is the people who are sovereign, not the state.”
Your arguments also overturn in important ways Marx’s analysis of the tie between religion, capitalism, and the modern state, which he offers in his essay “On the Jewish Question.” Marx argues that with the advent of the state, “man was not freed from religion, he received religious freedom. He was not freed from property, he received freedom to own property. He was not freed from the egoism of business, he received freedom to engage in business.”
Despite the anti-Jewish, if not anti-Semitic, aspects of this essay, I have always admired Marx’s analysis because it says something important about the modern constructs of religion and religious freedom. And Marx makes this point in 1844, long before late twentieth-century theorists of religion seemed to discover that “religion” as private faith was not only an invention of the modern state but, like “religious freedom,” testament not to religion’s power but rather to the power of the state. Marx makes special reference to the United States as epitomizing the inextricable ties between individual rights, private religion, and business. Many scholars working in religious studies take their cue from Marx in connecting religion with commodification. But your book upends both Marx’s analysis as well as simple arguments about religion and commodification in the United States. You show that in the United States religion and business always went hand in hand but that businesses imitated religious groups by incorporating themselves, and not the other way around. Even more profoundly, you show that religion and rights in the United States are not always individual but often collective, since one of the effects of disestablishment was to offer equal opportunity of incorporation for religious societies. In these ways, you overturn easy equations between individualistic religion, individualism, and capitalism that many of us, myself included, have long taken for granted.
Perhaps most interesting to me, as someone who has worked on modern Jewish thought and how Judaism does not quite fit into the modern category of “religion,” is how your arguments cohere so well with Jewish history and at the same time show how the Israeli state’s centralization of religious authority in its state rabbinate is anomalous in Jewish history. To put it very briefly, before Jews received individual rights of citizenship as European nation states began to emerge, Jewish communities, while subject to the political and legal frameworks of ancient Rome or medieval Christendom or Islam, also operated as semiautonomous, self-governing communities. Beginning in the late thirteenth century until emancipation, these communities were often treated as corporations. This semiautonomous structure meant that there were not only plural systems of law, or overlapping or competing sovereignties, within particular Jewish communities, but also heterogeneity in Jewish practices and laws across multiple Jewish communities. While it is not entirely accurate to say that Judaism is the established religion of the State of Israel, the state’s rabbinate system which handles marriage, divorce, and conversion to Judaism, among other things, centralized Jewish law by making it homogenous and not pluralistic as it had historically been. One of the ironic things your analysis points to is that Israeli law, which still maintains the British and Ottoman systems of personal law, actually has far less regard for the pluralism of group rights within religious communities than the United States, which, you show, has a long history of recognizing multiple and often competing corporate religious bodies.
One of the things I admire most about your book, and your work generally, is how unideological it is. You show readers how many things we take for granted are actually at times completely backwards. What we see in the United States is not a commitment to religious freedom but the impossibility of religious freedom. And what we learn from disestablishment is not that religious bodies lost their authority but rather that disestablishment allowed for the emergence of many corporate religious bodies that compete not just with each other but also with the state for sovereignty.
Sorry to go on for so long. I think I was supposed to ask you questions and I suppose what I’d like to ask you at this point is whether what I’ve written makes sense, is close enough to your intentions, and whether any of this is interesting to you? I’m really grateful for this opportunity to respond to your work.
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Winnifred Fallers Sullivan: Thank you for your generous reading of my book, Leora! It is very exciting to be in dialogue with you about it.
You situate my book in the midst of longstanding European debates about “church, state, and corporation,” citing Carl Schmitt, Karl Marx, and Ernst Kantorowicz. For me, this context—the problem of church and state as a trope—has always been problematic when it comes to the United States—which is all that I really know!—because, as you note, there is a real sense in which there is no church or state in the United States, in the European sense. Instead, it is we, the people, who are in charge of both. Perhaps there is also no corporation either, in the European sense, as your quote from Kantotorwicz suggests. Paul Johnson and Pamela Klassen and I began to try to think through the reasons for this apparent American exceptionalism—not just in the United States but elsewhere in the Americas—in our jointly authored book, Ekklesia. We came to see the people of the Americas as radically fractured by the violence and unresolved legacies of settler colonialism and enslavement, unable to take up the challenge of collective self-government. As you note, neither Schmitt’s singular sovereign nor Marx’s commodification seems to describe the state of religion in the United States. I think we need a political theology for the Americas.
And Judaism is one way to think this problem, as you explain. I have been rereading some of your work as well. Judaism does indeed present an interesting and complex problem for modern theories of both law and religion. Your elegant introduction to Jewish Legal Theories importantly describes how all theories of law are intimately tied to the rise of the modern state—and how a diverse group of Jewish thinkers have theorized Jewish law in relation to the changes the modern state brought.
One question that has puzzled me has been how to better understand how Jewish thinkers understand American disestablishment given the thorough embeddedness of the church in American law. It is, of course, deeply problematic to lump together all of the Jewish justices of the US Supreme Court, just as it is to lump together all of the Catholic justices, and assume that one thereby knows something about the way they read and interpret the law. Surely American legal training and culture and political, social and generational differences among the justices are far more determinative. Yet, I have sometimes been surprised at the comfort some of the Jewish justices seem to have with affirming the rights of “the church.” How do you explain this comfort? Is it that the church is for them a thoroughly secularized sociological concept? Or is it rather that there is an explicit calculation that the space for Jewish life in the United States is understood to be dependent in some sense on the strength of the privilege churches claim for themselves? A bargain with the devil, perhaps?
You note the irony in the fact that the United States seems to have a more robust place for legal pluralism and diversity within communities than Israel does, notwithstanding Israel’s commitment to personal law jurisdictions for minority communities. As you know, the history of minority jurisdictions—in places such as India, as well—but also indigenous sovereignties—often reveals a process of narrowing and conforming premodern and nonstate legal systems to suit state purposes. While the United States has at times had a much looser and apparently freer scope for religious self-government, in fact, non-Christian religious groups have arguably had to make themselves into church-like communities in order to avail themselves of such privileges. Has the price been too high for Jews in the United States? In other words, isn’t the price that all other religions have had to pay for American freedom in these matters, such as it is, one of becoming a church?
I think what you are saying in your introduction is that all of this comes back to the modern state. How different is the United States then? Speaking as a scholar of modern Jewish thought, what possibilities do you see for thinking beyond the church today anywhere?
Leora, you also note the ways in which religious studies in the United States has been influenced by Marxist theories of religion. I would say also that religious studies in the United States has been separationist, often accepting the account that the United States has somehow solved the church/state problem through disestablishment. There are various reasons for this, I think. Some of them institutional. Religion in the United States until fairly recently was mostly addressed within church history. It was an affair of seminaries and divinity schools and a specialized branch of history. Non-Christian religious traditions were often a kind of boutique academic enterprise within their own communities or confined to orientalist projects. Now that we are trying to see everyone, I think our political theological theory has lagged a bit, many still taking their cues either from an assumption that American religion is properly separate from law and politics or from a critical theory assumption that religion in general has been thoroughly subsumed by capitalist and neoliberal logics. Both of these assumptions make it difficult to see religions as holistic religio-political-legal enterprises—or otherwise worlds—except in a few places.
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LB: Thank you Winni for your generous response. I am very interested in your suggestion “that we need a political theology for the Americas.” My sense is that your book at the very least provides the beginnings of one. I understand the claim from your book, which I quoted in my initial response to you, that, “Disestablishment in the US has meant instead that church and state are each conceived of as governed by the people. It is the people who are sovereign, not the state,” as an articulation of an American political theology. One of the many things your book does is implicitly urge its readers to rethink their conceptions of what “politics” is. You show that religious corporations in the United States are simultaneously religious and political and that it is the law that makes them so. It is here that I see the closest parallel between your work and Kantotorwicz’s. But here’s the big difference: Precisely because of disestablishment, an American political theology is better understood in the plural, as American political theologies.
As your jointly authored book Ekklesia suggests, the plurality of political theologies remain contested. There are deeply troubling reasons for worrying about the prospects of collective governance, such as the history of slavery and ongoing racism in the United States (as Church State Corporation also shows). One question I have been thinking about is whether contested political theologies can coexist with collective governance, which would have to include genuine acknowledgment and redress for systemic racism. This is the ongoing challenge and peril of American political theologies. How do we draw lines between what kinds of identity can remain contested and what kinds not? To answer this question we all need to do more to rethink not just theologies but politics, as well. Put another way, I wonder whether the subtitle of your book might have included politics, so that it would read “Construing Religion and Politics in US Law”?
I’d like to respond to your questions through the lens of “construing politics.” But first a disclaimer. I’m not, of course, an expert on the Jewish justices of the US Supreme Court. But I think you are absolutely right that their American legal training and contexts are much more at the forefront of their legal arguments than their Jewishness or Judaism are. While all of the Jewish justices identified/identify as Jewish, and in some cases quite strongly, none of them had/have a particularly religious understanding of Judaism, as it has come to be practiced by people today who call themselves Orthodox Jews. This does explain something about the broad historical contours of Jewish views of “the church” in American law. Up until the end of the nineteenth century, traditionalist and liberal Jews alike embraced the notion that the United States is a religious nation. These American Jews were mainly concerned that Jews and Judaism would receive the same benefits afforded to Christian individuals and groups. The reform movement’s Union of American Hebrew Congregations, for instance, did not dispute Sunday laws, but only wanted Jews to have the same opportunity to work only six days a week in accord with the Jewish Sabbath. But by the end of the nineteenth century, liberal Jews increasingly advocated for a separation of church and state, particularly when it came to religion in public schools. Today, many Orthodox and ultra-Orthodox Jews align themselves politically with conservative Christian groups because they are interested in some of the same issues, especially school vouchers and opposition to gay marriage. This American Jewish alliance with Christians and Christianity is historically unprecedented, to say the least. So there’s a bit of irony in the fact that, in so far as debates about religious freedom go, the most traditionalist portion of American Jewry adopts positions that are highly untraditional.
Now what does this have to do with the Jewish justices? As far as I understand, all of the Jewish justices were/are mainly separationists as well as liberals. The two go together in the specific history of liberal Judaism in America since the late nineteenth century as well as within American history more broadly. But I do believe that at least when it comes to Justice Brandeis, we can learn something more, which is related directly to your book. As is well known, before joining the Supreme Court, Brandeis was a leader in the American Zionist movement (he terminated all of his positions within Zionist and Jewish organizations before joining the Court). Brandeis not only saw no contradiction between being a Zionist and a liberal American Jew (both of which he understood in wholly secular terms) but he also viewed these two positions as complementary. Brandeis died in 1939 before the establishment of the state, but within the context of what were his secularist assumptions, his twin commitments reflect two sides of the same coin. Both positions equate politics only with the sovereign state. Brandeis was not unusual in understanding Zionism as the only possible Jewish political expression while also viewing “religion” in the United States as a largely private and nonpolitical matter (which is in accord with the assumption of separation). This is where your book comes in: It shows that because “it is the people who are sovereign, not the state,” religious corporations are as much political (they claim sovereignty) as they may be theological. And as I suggested in my initial response, this view of politics is very much in keeping with the premodern Jewish experience.
You asked me what possibilities I see for thinking beyond the church today, anywhere. And you also suggested that for me, at least as it pertains to my introduction, everything comes back to the modern state. Before I read your book, I would have said yes, everything comes back to the state. But your arguments have made me see things differently. If it’s the case, as you argue, that “religious freedom” in the United States has and does include collective religious life and not just the beliefs of the individual, then what I think we have in the United States is something already beyond the church, for better and for worse. What we have is the possibility of lots of types of legal and political associations, which can be “religious” or not, that compete with the state and at times with each other for sovereignty. This is for the better when it leads to vibrant lives and political freedoms. It is for the worst when it fractures the nation and provides a pretext for prejudice and discrimination. Once we recognize how problematic it is to separate the parts that constitute what you call “religio-political-legal enterprises” from each other, a particular “religious” freedom seems to be less justified. Do you think it is possible and/or desirable, to dispense with a specifically religious freedom? Would this help the United States move forward on racial and other injustices?
Let me conclude by turning briefly to my own area of research. As I argued in the conclusion to How Judaism Became a Religion, in the United States, the difficulty of thinking holistically about religio-political-legal enterprises is epitomized by the 1994 case Board of Education of Kiryas Joel Village School District v. Grumet, in which the Court strained to argue that the establishment of a school district in Kiryas Joel was a violation of the establishment clause because Satmar Hasidim are (the Court argued) essentially religious individuals who have chosen to live together. I wonder how this case would have been adjudicated with respect to the incorporation of Kiryas Joel Village and the legality of establishing a public school. Do you have thoughts on this?
Returning to Israel for a moment, you are right, of course, about the narrowing of personal law jurisdictions for minority communities. But I wanted to point out that this is also the case for the majority community in Israel, in which a centralized rabbinate (unprecedented in Jewish history) narrows the options for ways to be Jewish in the Jewish state. Strikingly in the context of our conversation, there was a 2016 Supreme Court decision that accepted the validity of a conversion to Judaism supervised by a private, i.e., nonstate-sponsored, Jewish court in Israel. At least one of the justices openly acknowledged that this was consistent with the corporate structure of premodern Judaism, as opposed to what he called the “mandatory-colonialist approach.” All of this is to say that, as you have shown in your work, court cases are one of the best ways to show how insufficient our conceptual vocabulary often is.
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WFS: Thank you again, Leora. I do think you rightly call me out for burying the lede, if you like. There is a real sense in which this book is a call for a new politics, not a new law. I would say politics with a small p. The work we need to do together is religio-legal-political. A modern politics of separationism, founded in positivism and individualism, has hamstrung all three. Like you, I think that this political work is essential but will not be easy.
I was very interested that you brought up the Kiryas Joel case! One of my first published articles was on the Kiryas Joel case. (On rereading it, I blush for my early-career self when it comes to my description of Hasidism, but the larger points stand, I think.)
I have been interested in the constitutional place of corporate religion since I was in law school when I wrote a paper about the 1972 Yoder case. In many ways, Yoder was the high-water mark of free exercise accommodation before the 1990 Smith decision effectively ended such constitutional accommodations. The Court found that Amish families in Wisconsin had a First Amendment right to be exempt from mandatory schooling laws. The Amish argued that while they were comfortable with their children attending public elementary schools, they regarded high school as unnecessary and harmful to their sons and daughters who were being brought up to work in the Amish community as farmers. They did not need to learn higher mathematics and science and, furthermore, exposure to the secular social culture of high school would be damaging to the community—indeed effectively to destroy it. Justice Douglas wrote a blistering dissent asking whether anyone had asked especially Amish girls whether they wanted to be prevented from a high school education and the access to choices about their lives that such an education might give them. But the majority, in an opinion written by Chief Justice Burger, citing Henry David Thoreau, rhapsodized about the beautiful simple (Jeffersonian?) values of the Amish community.
The schools cases since Zelman have validated alternative schooling of various kinds. This term’s case, Espinoza v. Montana Department of Revenue, is only the latest case to approve public funds being used to pay tuition at private religious schools. I have not kept up with the Hasidic cases in New York. I will look forward to your work on them! The creation of a special public school district to serve disabled Hasidic school children reflected the creativity of New York educational politics more than it did constitutional jurisprudence, I think. But, to your question, I also think that the Court is very sympathetic to private schooling of all kinds, including home-schooling, primarily because many of these schools were created after Brown and school busing, as what are sometimes called seg academies. Voucher programs protect white kids from integrated schooling, at least those white kids who do not in effect have their own special public school districts created by wealthy suburban property taxes!
Finally, as we conclude this conversation, you ask, “Do you think it is possible and/or desirable, to dispense with a specifically religious freedom?” My answer is, yes! There is abundant evidence that legal protection for religious freedom cannot be fairly administered and that it distracts us from the political work we need to do to create a more just society.