The Impossibility of Religious Freedom: New Edition

The Impossibility

of Religious Freedom

The Impossibility

of Religious Freedom

WINNIFRED FALLERS SULLIVAN

New Edition

With a new preface by the author

PRINCETON UNIVERSITY PRESS

PRINCETON AND OXFORD

Copyright © 2005 by Princeton University Press

Preface to the new edition © 2018 by Princeton University Press

Published by Princeton University Press,

41 William Street, Princeton, New Jersey 08540

In the United Kingdom: Princeton University Press,

6 Oxford Street, Woodstock, Oxfordshire OX20 1TR

All Rights Reserved

New paperback edition, with a new preface by the author, 2018

New paper ISBN: 978-0-691-18095-3

The Library of Congress has cataloged the last edition of this book as follows:

Sullivan, Winnifred Fallers, 1950–

The impossibility of religious freedom / Winnifred Fallers Sullivan.

p.   cm.

Includes bibliographical references and index.

ISBN 0-691-11801-9 (hardcover : alk. paper)

1. Warner, Marina—Trials, litigation, etc. 2. Boca Raton (Fla.)—Trials, litigation, etc. 3. Cemeteries—Law and legistation—Florida. 4. Freedom of religion—United States.

I. Title.

KF228.W353S85 2005

342.7308'52—dc22                        2004058685

British Library Cataloging-in-Publication Data is available

This book has been composed in Janson

Printed on acid-free paper. ∞

press.princeton.edu

Printed in the United States of America

1   3   5   7   9   10   8   6   4   2

For my mother

Contents

Acknowledgments

Note on Sources

List of Illustrations

Preface to the New Edition

INTRODUCTION

CHAPTER ONE Outlaw Religion

CHAPTER TWO The Trial: The Plaintiffs

CHAPTER THREE The Trial: The Other Witnesses

CHAPTER FOUR Legal Religion

CHAPTER FIVE Free Religion

APPENDICES

APPENDIX A: Relevant Law: Excerpts from U.S. and Florida Constitutions, RFRA, FRFRA, and Rules and Regulations of Boca Raton Cemetery

APPENDIX B: Expert Reports of Broyde, Katz, McGuckin, Pals, and Sullivan

APPENDIX C: Ryskamp Opinion

Notes

Bibliography

Index

Acknowledgments

In the preparation of this book, my many debts to the following are both professional and personal: Jeremy Biles, Alexandra Brown, Spencer Dew, Sandy Dowler, Margaret Fallers, Susan Gilles, Hillel Gray, Philip Hamburger, Stanley N. Katz, Hans Kippenberg, Beth Lamanna, Cynthia Gano Lindner, Martin E. Marty, Heather Miller, Helen Scharbach Newlin, M. Sandford Norbeck, Kay Read, Frank Reynolds, Richard A. Rosengarten, Barry Sullivan, George Sullivan, Lloyd Sullivan, Brigitta van Rheinberg, James Boyd White, Robert Yelle, and the anonymous reviewers. But, most importantly, my friend, colleague, and teacher, Frank Reynolds. I am very grateful to all of them for their counsel and support. I am also grateful to Washington and Lee University and the University of Chicago for the institutional support they have provided.

Further, I owe a posthumous debt, personal and professional, to Philip B. Kurland, who saw earlier than most, and with greater clarity, the issues with which this book is concerned.

Note on Sources

All of the materials used in the preparation of this book are a matter of public record.

Illustrations

(Following page 31)

1. Grave of the wife of Mr. Karram (1999)

2. Grave of the wife of Mr. Karram (2004)

3. Grave of the brother of Ms. Monier and Ms. Cavedoni (1999)

4. Grave of the brother of Ms. Monier and Ms. Cavedoni (2004)

5. Grave of the son of Mr. and Mrs. Payne (1999)

6. Grave of the son of Mr. and Mrs. Payne (2004)

7. Grave of the son of Ms. Davis (1999)

8. Grave of the son of Ms. Davis (2004)

9. Grave of the father of Ms. Riccobono (2004)

10. New section of Boca Raton Cemetery (2004)

11. Old section of Boca Raton Cemetery (2004)

12. Grave-digging equipment (2004)

13. Example of Jewish grave with stones left by mourners (2004)

14. Other nonconforming graves (2004)

15. Other nonconforming grave (2004)

16. Other nonconforming grave (2004)

17. Other nonconforming grave (2004)

18. Other nonconforming grave (2004)

19. Other nonconforming grave (2004)

20. Other nonconforming grave (2004)

Note: All of the photographs dated 2004 were taken by the author. The photographs taken in 1999 were entered into evidence at the trial.

Preface to the New Edition

Rightness in the end is the fit of the result to the facts, compiled with the possibility of generalizing the result. No formula will produce it.

—John T. Noonan, Jr.

Though the Beth Din is rapidly disappearing, I believe it will be reinstated and evolve into a universal institution.

—Isaac Bashevis Singer

INTRODUCTION

What makes law successful? John Noonan, judge of the United States Court of Appeals for the Ninth Circuit, and Isaac Bashevis Singer, Nobel prize winning novelist, each pointed in their work to the ways in which justice demands law’s fitness to everyday life.¹ Socio-legal scholars too, such as John Comaroff and David Engel, teach us that successful law requires social and cultural coherence.² They argue that there must be a reasonable correspondence between the understandings of the human person and society that underwrite any law and the understandings of the human person and society held by those who are being regulated, even as those understandings are never single within a particular society, even as they change over time, and even as law is differentially related to the governing political order of a particular society. When law speaks, people must recognize themselves. For law to be successful, they must see law as a way to go forward with their lives.³ If the gap becomes too great, law fails. My argument in this book is that law about religion in the US—what is often called religious freedom—is broken because, among other reasons, too often law’s religion no longer corresponds to the people’s religion.⁴

I am not alone in this view. Indeed, religious freedom in the United States today seems to many to have become almost unrecognizable. More than a quarter century after the U.S. Supreme Court’s 1990 decision in Employment Division v Smith,⁵ a decision that appeared to many at the time to drastically curtail the reach of the free exercise clause of the First Amendment to the U.S. Constitution, Justice Scalia’s opinion handing the issue back to the legislatures--leaving accommodation to the political process,as he said-- has been productive beyond anyone’s anticipation at the time. Federal and state laws passed effectively to reverse the Smith decision have been legion, beginning with the 1993 federal Religious Freedom Restoration Act (RFRA),⁶ and now including other federal laws such as the 2000 Religious Land Use and Institutionalized Person Act (RLUIPA),⁷ state RFRA statutes, as well as special provisions in other kinds of legislation. This law-making shows no sign of abating, here or abroad. A specialized bar has developed in the United States to prosecute these cases. And American lawyers have taken their case on the road, sponsoring and promoting such legislation and litigation in other countries. This is the world that Smith made.⁸

This book describes one of the first state RFRA cases, brought in 1998 on behalf of a group of Florida residents who were complaining that the City of Boca Raton had, in the words of the statute, substantially burdened the exercise of their religion by forbidding the erection and maintenance of small home-made shrines on the graves of their dead relatives in a city cemetery. Today twenty-one states boast their own RFRA laws and the recent U.S. Supreme Court extension of the federal RFRA statute to corporations in the Hobby Lobby decision⁹ has startled many, seeming to greatly expand its reach. Litigants span the religious spectrum as Americans seek state recognition and protection for the particular religious cultures they wish to inhabit, particularly in the workplace.¹⁰ To some there seems to have been a transformation of U.S. law guaranteeing the free exercise of religion from a law understood to protect the practitioners of minority religions to a law protecting the majority from the minority. To others, the new law seems finally to promise to liberate them from the rule of a secularist majority with a protection formerly reserved only to small insular minorities. One friend who teaches this book told me that one of her students asked her when religious freedom got weaponized?¹¹

I wrote The Impossibility of Religious Freedom about fifteen years ago after participating as an expert witness in the trial it concerns. I intended the book as a teaching book, providing resources in the appendices to allow students to think through on their own the real challenges facing courts in these kinds of cases. I have been gratified by its reported success in the undergraduate classroom. But I hear also from those who teach it that while it continues to be a distinctive resource, they spend more and more time providing an update and filling out context, as well as fielding questions about my own position in regard to these issues. The book has also been a bit of a touchstone for some in a political philosophical debate about how legally to protect the freedom of religion and belief. ¹²

In this preface to the second edition, I offer a brief update to the state of the law in the United States, set the U.S. case in the larger frame of the global politics of religious freedom today, discuss the evidentiary challenges posed by these cases, explaining why I have sworn off testifying, and, finally, note the now flourishing and fascinating global field that is emerging on religion, law, and politics, and its relationship to debates about secularism and secularization.

U.S. LEGAL UPDATE

Notwithstanding its name and the advertised intentions of its drafters and promoters, it is important to understand that the Religious Freedom Restoration Act was an act of legal innovation, not an act of restoration. While the federal RFRA promised to return the state of the law to that which had existed before the US Supreme Court’s 1990 Smith decision, what it, and its successors, did instead was to greatly expand what had previously been a very limited exemption. Justice Antonin Scalia’s opinion for the majority in Smith had held that the free exercise clause of the First Amendment to the U.S. Constitution does not in fact mandate a religious exemption, or accommodation, from neutral laws of general application that impinge on the activities of religiously motivated people, even if such laws effectively outlaw acts that are understood by them to be religious duties—even sacraments. The Smith case concerned an asserted right to exemption from the Oregon narcotics laws for the religious use of peyote. While there had been a brief period between the Court’s 1963 decision in Sherbert v. Verner¹³ and its decision in Smith when the Court appeared in a small number of cases to recognize a generalized right to an exemption, Scalia made clear in his careful re-reading of prior cases that such a generalized exemption had never been the law. Sherbert and each of its successors, he said, were actually cases recognizing hybrid rights, religious exercise plus another right, such as the right of parents to direct their children’s education.

It has in fact never been the case in the United States that, in the words of RFRA, those substantially burdened in the practice of their religion could force all government officials, local, state, and federal, to accommodate their practice unless government could show a compelling state interest and use of the least restrictive means. There have indeed been regular accommodations for some religiously motivated dissenters, mostly legislative, such as the accommodation for the ritual use of alcohol by Catholics and Jews during Prohibition and laws permitting exemption on the ground of conscientious objection to military service—as well as occasional judicially mandated accommodations—but they were very rare. Others have fared less well. Indeed, mostly it has been the case in the US that minority—and majority—religious communities, immigrant and home grown, have learned to adapt their practices to the law. But the aftereffect of Smith has been real. Notwithstanding the Supreme Court’s return to the rule in Reynolds distinguishing an absolute right to hold religious opinions free of legal prohibition from a qualified ability to act on those opinions,¹⁴ accommodation of religious practice has simultaneously been displaced and otherwise institutionalized by other branches of government, most notably through legislative mandates such as those requiring accommodation in the workplace. Arguments continue to be made about the constitutionality of both the federal and state RFRA statutes on the ground that such mandated accommodations violate the Establishment Clause of the First Amendment but the Court’s most recent RFRA opinions seem to affirm its constitutionality.¹⁵

Also noteworthy in the post-Smith period has been the development in the United States of a specialized bar to prosecute cases in the name of religious freedom. Particularly active in these efforts have been the American Center for Law and Justice, founded in 1990, the Becket Fund, founded in1994, the Alliance Defending Freedom, also founded in 1994, and the Brigham Young University International Center for Law and Religion Studies, founded in 2000, although there are many others. For the most part, while sponsored largely by Christian organizations, all of these groups zealously seek to protect a widely diverse group of those they take to be religiously motivated dissenters from a wide variety of laws and from the depredations of what is understood to be the effects of secularizing legislation and government activity—in the name of religious freedom or religious liberty.

The most notable recent development in religious freedom law in the United States is the apparent recognition of corporate free exercise rights under RFRA. In its 2014 decision in Burwell v Hobby Lobby,¹⁶ the US Supreme Court recognized the right of several closely held corporations to refuse to provide certain forms of contraception under their employee health plans for reasons of religious conscience. This decision is an extension of its recognition of the church’s corporate rights through its constitutionalization of the ministerial exemption in Hosanna Tabor v. EEOC.¹⁷

In 1998, there was an attempt by Congress to internationalize US religious freedom law with passage of the International Religious Freedom Act.¹⁸ Among other new protocols, IRFA created a special State Department office to monitor religious persecution and requires preparation by that office of annual reports describing religious freedom violations in every country in the world, as well as special training of foreign service officers and immigration officials and the opening of American embassies to religious activities. A special adviser on international religious freedom was to be added to the National Security Council. To oversee these new civil servants, the Act provided for the creation of an independent watchdog advisory commission on religious freedom. Finally, the President was directed to take action, on the basis of the annual reports, to promote religious freedom around the world. While formal executive enforcement of IRFA has been weak, the various governmental activities required or enabled by the Act have been many, and the international effects, particularly of the annual reports, have been real.¹⁹

GLOBAL POLITICS OF RELIGIOUS FREEDOM

Legal and political efforts to enable religious practice through the accommodation of religiously motivated dissent is now widespread around the world. Laws protecting religious freedom proliferate. There has also been an avalanche of publications from across the political spectrum promoting the right to religious freedom as a necessary response to secularism, majoritarian oppression, and persecution of various kinds. Reporting of incidents perceived to be exemplary moments of religious discrimination or persecution circulate widely by way of electronic media so that each new account is an opportunity to underline the need for action. Each case is also an opportunity to test the argument made in this book once again. The entangled political, social and cultural complexities of these cases have been magnified by post 9/11 politics.²⁰

Particularly instructive as a point of comparison to the U.S. context was one of the first decisions of the Supreme Court of the UK. On the 16th of December, 2009, the then newly constituted Supreme Court of the United Kingdom decided its first case, R v. The Governing Body of JFS.²¹ The Court found that one of the premier Jewish secondary schools in England, the Jews Free School, founded in the eighteenth century as a charity school for the children of poor Jewish families but now a highly selective feeder school to elite British universities, had violated the UK Race Relations Act when it refused admission to a Jewish child on the ground that he was not a Jew according to Jewish law. For Americans, the JFS case is particularly useful because it illustrates the way in which the regulation of religion works in a tolerant country with an established church. In addition to what Americans would recognize as secular public schools, the UK government supports what are known as faith schools administered by particular religious communities, schools that are free to discriminate in favor of their co-religionists.²² The issue in the JFS case was whether the school’s refusal of admission, founded in a decision of the Office of the Chief Rabbi of England that the child’s mother’s conversion was invalid under orthodox Jewish law, contravened the Race Relations Act. Each of the justices struggled with how to decide whether Jewish identity is properly understood as racial, religious or ethnic, the majority eventually deciding, with evident reluctance, that the admissions practice was discriminatory on racial grounds. Subsequent admissions standards for the school have shifted away from a traditional reliance on the Jewish identity of the mother to determine the identity of the child, relying instead on evidence presented as to the religious practice of the child. The judgment has been much criticized.²³

Such difficult and puzzling cases now appear with regularity across the world.²⁴ An academic conversation about how to tell the history of the legal accommodation of religious difference has flourished. Notwithstanding what most Americans believe, the United States did not invent religious freedom. In the last couple of decades there has been a great deal of important scholarship tracing the various genealogies that come together in the current moment of worldwide advocacy on behalf of religious freedom. On the one hand, there have been many books and articles rehearsing a progressive narrative, usually founded in a post-Westphalian and Enlightenment turn to tolerance; there has also been a fascinating and complex effort to tell a more complicated and ambiguous story.²⁵ Sam Moyn’s argument that human rights discourse is an invention of the last quarter of the twentieth century²⁶ has provoked many thoughtful responses.

At the same time as this intensification of legal and political activity around the world, there has been a flourishing conversation addressed to re-thinking widely accepted stories of secularization. Now classic works by three authors have for many provided the touchstone for this conversation in the United States: Talal Asad, José Casanova, and Charles Taylor.²⁷ Many others have followed.²⁸ Indeed, the last two decades have seen a sophisticated re-evaluation of the effects on both academic work and on politics of the exclusion or dismissal from its purview of religion and religious stuff. The specific implications of this intellectual work for law is still being received in legal studies, both socio-legal studies and doctrinal legal work, and for laws protecting religious freedom.²⁹

THE RELIGIOUS EXPERT

In a very simple sense this book teaches that what makes religious freedom impossible is the fact that laws regulating religion need to have some way of distinguishing what counts as religion.³⁰ In a country without a designated authority to make such decisions such as the United States, such decisions are very difficult to locate. Religion is not a naturally occurring object which comes with bright line borders. Most who write about religious freedom in the United States minimize this problem.³¹ I do not agree that it should be minimized. That the difficulty is not always noted by the parties or by the court in a particular case does not mean that the instability of reference does not result in bias in these cases. The difficulty of making this determination is evident even in those countries with an established religious authority, as the discussion of the JFS case, above, shows. In my view, we do not have a sufficiently stable and shared account of religion to underwrite these laws. In the United States, the difficulty is compounded by the practice of using expert witnesses to assist the court in making such decisions.

The Boca Raton case discussed in this book concerned what is called in the United States the free exercise of religion. ³² Five academic experts in religion testified at the trial, three for the plaintiffs and two for the defendant. The book shows how the diversity of renderings of religion among the various parties, witnesses and lawyers, robbed all of them of authority leaving the judge to devise his own quite idiosyncratic test for determining what counts as religion for the purposes of RFRA acts. Something like this situation is the norm in the United States in religion cases of all kinds.

The other religion clause in the First Amendment is the Establishment Clause. Cases brought under the Establishment Clause address the question as to when government is prohibited from acting because its actions constitute an unconstitutional establishment or favoring of religion. An unconstitutional religious establishment has been understood to occur in the United States not only when government officially institutionalizes a particular church as the official state church such as the Church of England, but also in a range of situations in which government can be understood to endorse or privilege one religion over another, or even religion over non-religion. Academic experts in establishment clause cases testify as to the religiousness or secularity of activities of the government (or of agents of the government) rather than of individuals as in free exercise cases. While free exercise and disestablishment have usually been separately treated in First Amendment jurisprudence, they are also understood to be two sides of the same coin. Free exercise cases always have establishment implications and establishment cases always have free exercise implications. The more the government protects free exercise, the more it tends to recognize and arguably establish religion; the more the government seeks to sequester religion in the name of disestablishment, the more it tends to diminish the space for religious observance.

Most Establishment Clause cases have involved schools because of American traditions of local control of education and because historic anti-Catholic prejudice³³ in the U.S. make schools a focus of political and constitutional concern, but also because of the persistent tensions caused by federalism.³⁴ Two establishment clause cases, one a school case and one not, illustrate the incompatibility of expert academic ways of talking about religion and legal ones in establishment clause cases.³⁵

In a highly publicized decision in 2005, Kitzmiller v Dover School District,³⁶ a federal district court in Pennsylvania held that a local school board’s recommendation to its students that it consider Intelligent Design (known as ID) as an explanation for the fossil record constituted an unconstitutional establishment of religion.³⁷ Expert witnesses at the trial testified concerning the nature and history of Intelligent Design. Judge Jones found for the plaintiff families that had objected to the School Board’s recommendation on the ground that Intelligent Design is not science because ID lacks an empirical foundation in the scientific method. Because he had determined that ID was not science, he decided it must be religion—and that teaching ID in the schools amounted to an unconstitutional establishment of religion. Reflecting a now patterned and increasingly hackneyed polemic, science or religion, reason or faith, were the only options he considered.

A brief review of the local situation leading to the lawsuit is instructive. The Dover School Board had announced that, beginning in January 2005, teachers would be required to read the following statement to students in the ninth-grade biology class at Dover High School:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part. Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.³⁸

While ridiculed by many liberal commentators, the statement, taken at face value, seems a genuine, if somewhat untutored and unscientific—in the professional sense—effort, to explain to students how science education works and how the school board intended to handle local concerns about the teaching of evolution and the proper role of families in child raising. There is no mention of God or of religion in the school board’s statement or in Of Pandas and People.

Indeed, rather than starting with a definition of religion, Judge Jones’ opinion in Kitzmiller used the evidentiary rules governing the introduction of expert scientific testimony in the courtroom to determine what constitutionally counts as religion.³⁹ He found that ID is a deliberate fraud. While it markets itself as science, ID, he said, is really stealth religion. Intelligent Design, and the question of it’s real purpose, an artifact one might say of American populism and of the U.S. culture wars, became in Kitzmiller a test case for delineating the boundary between what the judge and the expert witnesses contended were two mutually exclusive domains, science and religion, a boundary whose existence and stability was assumed to be enclosed within a zero-sum game of possibilities.

On what evidence can a court in a country without an established religion take notice of a boundary between the sacred and the secular? To recommend a book about ID to high school students may be to recommend nonsense but, one might argue, to do so is not therefore necessarily to recommend religion, whatever the assumed motivation might be of ID proponents. Proponents of ID are anti-establishment in the sense of being against both big government and big science. Some of them are striving to make space for a biblical account of human origins. But ID itself arguably has no specific religious content. Its proponents learned that lesson from the fate of efforts to teach creationism.

Was the Dover School Board’s statement an establishment of religion? What evidence was offered? As with the Warner decision considered in this book, Judge Jones’opinion in the Kitzmiller case referenced various experts who testified at the trial. Among them was a Christian theologian, John Haught, professor of theology at Georgetown University; Haught described ID as bad theology, the product, in effect, of religious ignorance. ID was not just bad science, he said, it was also bad religion:

ID tries to squeeze what is undeniably a supernatural cause, intelligent design, into an explanatory slot where only natural causes are methodologically permissible . . . Throughout the modern period scientific method has refused to use categories such as purpose, God, intelligence, value, meaning, importance, etc., and has attempted to understand all phenomena in a very limited impersonal and indeed physical way . . . Theologically, moreover, major traditions maintain that if God influences and interacts with the created world it cannot be in the same way that physical causes operate. From the point of view of the most prominent theologians, therefore, not only is ID poor science, it is also appalling theology.⁴⁰

Major traditions and the most prominent theologians have worked it out, according to Haught. No good scientist would indulge in professional speculation on purpose, God, intelligence, value, meaning, or importance. No good theologian, he further implied, would believe in miracles or assert that God intervenes in history. Furthermore, genealogy, according to Haught, establishes the essential nature of things. ID is tainted by its forbearers.

Haught is a liberal theologian. The practice of having liberal theologians either testify or be cited in American courtrooms as experts on religion in general is longstanding. Their role is to debunk folk knowledge. In another evolution case, McLean v. Arkansas,⁴¹ well-known liberal Protestant theologian Langdon Gilkey served as an expert witness against the creation science statute in Arkansas. He used the Protestant Christian theology of Paul Tillich to define religion and to critique creation science. Haught, Gilkey and Tillich have all been enlisted in service of the legal establishment of what might be described as an anti-democratic liberal political theology. The fit between liberal theology and institutional science is very cozy.⁴²

By continuing to rely on such dubious academic line-drawing between the religious and the secular, courts have been drawn into a project to avoid dealing with pressing issues concerning public education in the United States, including funding and racial inequity. This project of avoidance, of a piece with larger social and cultural divides in American politics, has in the case of schools arguably increased the tendency of conservative parents to turn to alternatives to public education such as vouchers, charter schools, private religious schools, and Christian home-schooling.

One more case. In 2005 I served as an expert witness in a lawsuit challenging the constitutionality of an in-prison rehabilitation program.⁴³ I testified to what I thought to be a fairly unremarkable opinion concerning the evangelical Christian character of the program, InnerChange Freedom Initiative, then operated in one of the Iowa state prisons by Charles Colson’s Prison Fellowship Ministries. InnerChange described itself in its own literature as biblically-based and Christ-centered. I believed that my opinion as to its evangelical Christian nature would be shared by most other scholars of American religion. Indeed, before the trial I believed that Prison Fellowship would so regard the InnerChange program. I was not sure that the plaintiffs needed an expert. I was wrong. Prison Fellowship argued at trial that the in-prison program is secular because it accepts all comers, does not engage in proselytization, and teaches universal values. They use the biblical idiom, they said, because that is their language but they were not trying to make Christians. They were trying to engage in effective preparation of prisoners for reentry. They were enraged that I would call them religious. They believe in religious freedom and they believe that the secular, in the sense of the common good, is not owned by liberal secularists. They also commonly use the adjective religious as a term of derision, because it implies a ritualistic, rather than an affective, relationship to God.

In the appeal of the trial court’s decision finding the program to engage in coercive proselytization to the U.S. Court of Appeals for the Eighth Circuit, Prison Fellowship successfully challenged the admissibility of my testimony, arguing that the Constitution prohibits an American court’s hearing from any expert in religion. The court of appeals explained: It is well established, in numerous other contexts, that courts should refrain from trolling through a person’s or an institution’s religious beliefs. The district court abused its discretion, as the professor’s testimony is not relevant.⁴⁴ These were chastening words for an academic. In other words, while the Court of Appeals in the InnerChange case substantially affirmed the trial court’s conclusion that the state’s contract with the prison program violated the Establishment Clause because it was pervasively sectarian, the appellate court also held that my testimony was not constitutionally relevant because such expertise is inherently biased and establishmentarian.

On reflection, I am inclined to agree with Prison Fellowship—about expert evidence in that case and others. Scholars of religion should not be testifying in free exercise and establishment clause cases. We are not doing what the Federal Rules of Evidence requires of experts. We are not helping the trier of fact. What we are doing is telling people that they don’t understand their own religion. That is un-American. It is for the courts and the legislatures, at the direction of the people, to sort out what religion means for law.

CONCLUSION

A new edition is in some ways an act of vanity.⁴⁵ A published book is an object out there in the world with a life of its own, and the author has no business trying to explain further or control its interpretation. So, in conclusion, let me just try to articulate a little more clearly how I now understand my take on these cases.

I grew up in anthropology-land. As the daughter of anthropologists, in common with many other children of anthropologists, that meant that my early childhood was spent living in the place where my father was doing research for his dissertation. But it also meant that I grew up with a certain accepted idiom about how to talk about cultural difference. From a naïve, perhaps childish, point of view, cultural difference, indeed cultural, and perhaps moral, relativism, was natural and unexceptional, not something that needed explaining. As I have sought to become more adult in my understanding of the effect of this early experience on my scholarly work, I have found that my approach to the study of the conjunction of law and religion is deeply inflected by the undogmatic and non-ideological flavor of the version of anthropology-land in which I grew up.⁴⁶ Perhaps idiosyncratically as well—I was formed by the piety of my father. My mother, who was also trained as an anthropologist, was outspokenly hostile to the church—and to religion in general. Religion was both natural and in some sense real for both of them. I am not professionally trained as an anthropologist but I am attracted to the work of those anthropologists of law and of religion whose method begins with an attention to how people actually order their lives rather than how philosophers tell us that life is or should be ordered.These various approaches can intersect in fruitful ways but the starting point matters. I have found it productive to begin with the local because that is where we live. Thinking carefully about religious freedom requires, in my view, careful attention to what happens to actual religion when it becomes the object of legal protection.

There is much excellent writing today on the intersections of law, religion and politics.⁴⁷ While my tastes tend toward the anthropological, I have learned much from historical and philosophical writing. I am indebted to many whom I have not mentioned here.

In the last sentence of this book I proposed that personal freedom may not be best realized through laws guaranteeing religious freedom but by laws guaranteeing equality. That sentiment now feels a bit naïve to me. I am less confident about law—and equality and freedom. Rights talk seems distracting. I think the lesson to be drawn from these cases is that there is much real on the ground political work to be done. Politics, not policy work. Having argued here and elsewhere that religious freedom is impossible because we do not know what religion is, I have come to believe that these cases can be viewed as diagnostic of persistent social challenges for Americans. In other words, these cases are not really about religious freedom. Rather, religious freedom has come to be a catch-all for other matters, a distraction from the need for universal health care and decent public education, for sure, but perhaps more importantly from the need to listen to one another without preemptive judgment. Nadia Marzouki concludes her new book on the distorting effects of the current Islam talk in the United States with these words:

Only a human encounter may create some play, a gap in this irrefutable logic of words. It can make appear the possibility of an original relation, unstereotyped, to the world and the other, a relation of copresence and egalitarian dissensus rather than dialogue.⁴⁸

Refusing either law or education as the solution to the deep divisions today and refusing a demonization of the other, Marzouki makes a plea for ordinary politics. There does not seem to be another way.

Thank you to Beth Hurd, Sarah Imhoff, Noah Salomon, and Spencer Dew for reading and commenting -on this Preface. Thank you also to Courtney Bender and Peter Gottschalk, for suggestions for this preface based in their teaching of the book. And thank you to Robert Yelle for hosting me for a week in Munich, giving me an opportunity to write this preface.

NOTES TO THE PREFACE

1. John T. Noonan, Jr., Master of Restraint, Review of Learned Hand: The Man and the Judge by Gerald Gunther. New York Times May 1, 1994; Isaac Bashevis Singer, In My Father’s Court (N.Y.: Fawcett Crest, 1962), p. viii. See also John T. Noonan, Jr., Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks (Berkeley: University of California Press, 1976) and Isaac Bashevis Singer, More Stories From My Father’s Court (tr. Curt Leviant) (N.Y.: Farrar, Straus and Giroux, 2000); James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: University of Chicago Press, 1994); Benjamin Berger, Law’s Religion (Cambridge: Cambridge University Press, 2016); Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of Chicago Press, 1999); and Robert Cover, Nomos and Narrative, Harvard Law Review 97: 4 (1983).

2. John L. Comaroff and Simon Roberts, Rules and Processes: The Cultural Logic of Dispute in an African Context (Chicago: University of Chicago Press, 1986) and David Engel and Jaruwan Engel, Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand (Palo Alto: Stanford University Press, 2010).

3. See also, Lawrence Rosen, The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge: Cambridge University Press, 1989) and William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (Chicago: University of Chicago Press, 1997).

4. Bernard Harcourt, The Illusion of Order: The False Promise of Broken Windows Policing (Cambridge: Harvard University Press, 2004) and Keally McBride, Mr. Mothercountry: The Man Who Made the Rule of Law (Oxford: Oxford University Press, 2016). This conversation is founded in part in a reading of the work of Michel Foucault. With respect to its interconnection with religion, see, in particular Michel Foucault, Security, Territory, Population: Lectures at the College De France, 1977-78 (London: Palgrave Macmillan, 2009). See also, Winnifred Fallers Sullivan, Religious Freedom and the Rule of Law: Exporting Modernity in a Postmodern World? Mississippi College Law Review 22(2003): 173-83.

5. Employment Division v. Smith, 494 U.S. 872 (1990).

6. Religious Freedom Restoration Act, 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4.

7. Religious Land Use and Institutionalized Person Act, 42 U.S.C. § 2000cc et seq.

8. See Winnifred Fallers Sullivan, "The World that Smith Made" in Winnifred Fallers Sullivan, Elizabeth Shakman Hurd, Saba Mahmood, and Peter Danchin, eds., Politics of Religious Freedom (Chicago: University of Chicago Press, 2015).

9. Burwell v. Hobby Lobby, 573 U.S. ___