The following are some thoughts I’ve been working out as I prepare to give a paper at UC Santa Barbara at the beginning of May on the relationship between theology and law. They’re mostly half formed, so questions and pushback are appreciated.
The recent signing into law of the Indiana Religious Freedom Restoration Act by Indiana’s governor to protect the “religious freedom” of individuals who want to deny services to others whose lifestyle offends their religious sensibilities is only one in a litany of examples of conservative Christians attempting to use the state to defend their desire to openly discriminate against people they don’t like. That reading of the case is obvious to most people and is one of the reasons these cases are pure gold for scholars who study religion, politics, and law. Laws like this are masqueraded as non-establishment when they seem to clearly represent an attempt to enshrine some form of religious morality as law.
In other words, what proponents of this legislation are doing is claiming that the legislation itself has no religious content (that would be establishment); it is instead circumscribing the rights of religious adherents to so that they may be “protected” to obey the tenets of their religion. Religion, here, is not explicitly defined as Christianity, even though it is predominately Christians who support and benefit from the bill. Presumably, the law would allow for anyone, on the basis of her religious beliefs and practice, to deny service to anyone else who threatens adherence to those beliefs and practice. Here’s the rub though–when cases come before higher circuit courts whose questions come under these sorts of laws (or are brought under the First Amendment more broadly) it becomes impossible for the court not to create some kind of working definition of religion that looks an awful lot like Christianity. We saw this tension in Oklahoma when Satanists petitioned for a statue of Baphomet to be placed in front of the Oklahoma State Capitol. Winnie Sullivan’s book The Impossibility of Religious Freedom details a case in Boca Raton, FL in which a judge, in attempting to avoid establishment, inadvertently “defines” religion along Protestant lines in his ruling on a case which had to do with Catholic and Jewish folk mourning practices and ends up excluding those practices as outside “religion.” (Sullivan, by the way, is the keynote speaker at the UCSB conference.) In other words, it is not clear at all that this law would actually protect a person denying service to a Christian because said Christian was offensive to her religious beliefs (e.g. a Muslim or Jew denying a Christian on the basis of her belief that Christians are idolaters–an occurrence quite unlikely to happen anyway.)
Cases like this are indeed worthy of our attention because they seem to expose the language of the secular state as truly inadequate to address complex religious questions and actually in constant violation of its own identity as secular and “neutral” with respect to religion when it attempts to issue rulings on these kinds of questions. They point to the inextricable link between religion and politics, and especially that the religious is always political.
I think we could go a step further though in showing just how deeply religious the secular political-juridical discourse is on questions of religion and religious freedom and how incredibly problematic that is. “Political theology” which first emerged as an explicit line of inquiry in the 1920s aimed to show the Protestant religious structure of Western political systems (albeit with a pretty inadequate and static understanding of theology.) I think that we need to begin to develop a “legal theology”–a discourse which can explain the legal arguments of these sorts of cases in terms of their underlying theological claims. Because they certainly are making theological claims and often very, very, bad ones.
The point is not simply to reinforce the religious character of the secular. That’s been done to death. Rather, I see it as a next step in trying to suss out what religious claims are actually being advanced, what that may reveal about the religious commitments of particular segments of a population, and, in the case of a state advancing an argument, what sorts of people are excluded or rendered illegible. In practice, I don’t think we can judge the merits of a legal argument on the basis of its quality as a theological argument. But casting these sorts of arguments in theological terms does help us to better understand their precise relationship to religion.
Lots of bloggers, Christian or not, have already gestured toward this regarding the Indiana legislation by pointing out that “refusing service” on the grounds of moral objection is not exactly a tenet of Christianity. In fact, it seems to be exactly the opposite. We might ask, “What does it mean theologically to demand the right to refuse service?” As we dig deeper into this question, the language of the law itself reveals to us a particular theological character of a segment of American Christians–namely, the value of moral purity over generosity and hospitality; a clear hierarchy of sins; a devaluing of the humanity of people who participate in the worst of these “sins,” and on and on. Nothing new there. But this reading of the law highlights the fact that the state is not neutrally “protecting” the rights of some Christians to morally object to certain behaviors. The affirmation of these objections, when read theologically, is betrayed by the clear preferences to particular types of not simply religious identification but very specific ways of viewing Christianity.
These types of situations can get even more complex though. In the Indiana case as well as the case Sullivan treats, it is the state that is implicated in this kind of backdoor establishment-as-non-establishment situation. It’s the state’s job to at least try really hard to give the appearance of a secular, neutral stance on religious questions, But there are other instances where groups that are explicitly religious attempt to utilize the language of the secular liberal state in order to protect themselves against lawsuits and other legal action. For example, in 2003 suit was filed against an Evangelical residential rehabilitation program which used funds from the state of Iowa to run their program in an Iowa prison. The suit argued, of course, that this constituted a violation of the First Amendment (establishment of religion) precisely because the methods of the organization (Prison Fellowship Ministries) were explicitly religious and being funded directly by the state (not to mention prisoners who participated in PFM’s program were given preferential treatment while incarcerated.)
The argument PFM made against this claim is rather astounding, particularly from a Christian point of view. They argued to the contrary that their program was secular because their goals aligned with those of the state–namely, the rehabilitation of inmates and their reentry into society as productive citizens. They claimed the lawsuit was yet another attempt on the part of “secularists” to remove religious organizations from the level playing field of public service and block them from providing services to people who volunteer to receive them. Their methods, they claimed, were irrelevant as long as the aims were secular. In other words, conversion was not a requirement to complete the program, and it is on that point specifically that the distinction between secular and religious hinged in PFM’s view. Their methods included Bible study, prayer, and other forms spiritual formation–all terms used by PFM, all claimed to be part of the overall “secular” project of their organization. They did end up losing the case. (Another book by Sullivan, Prison Religion: Faith-Based Reform and the Constitution details this case.)
This case gets into what I think is some even more interesting legal-theological territory than the Indiana case. Here, we might ask: What is the significance of the claim that rehabilitation and reentry into society is a “secular” and not a “Christian” goal? What is the relationship between “conversion” and the transformation of the person? In PFM’s view, what is entailed in conversion to Christianity? In other words, the argument advanced by PFM in this case significantly alters the aims of spiritual formation and discipleship from within the Christian tradition itself. But it also raises questions regarding the difficulty of distinguishing between “religious” and “secular” goals within the realm of public service.
How are states supposed to adjudicate these kinds of cases when the most important questions entail a decision about what does and does not constitute “actual” religious practice? I think asking these kinds of theological questions about the legal arguments brings this difficulty into sharper focus.
If anyone is interested, my paper at UCSB is going to deal with a famous European case in which plaintiffs sued the Italian government over crucifixes that were hung in public school classrooms. The state’s defense? That the crucifix is a symbol of democratic values, universal humanism, and human rights. You can find information about the conference here.