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The Impossibility of Religious Freedom
The Constitution may guarantee it. But religious freedom in America is, in fact, impossible. So argues this timely and iconoclastic work by law and religion scholar Winnifred Sullivan. Sullivan uses as the backdrop for the book the trial of Warner vs. Boca Raton, a recent case concerning the laws that protect the free exercise of religion in America. The trial, for which the author served as an expert witness, concerned regulations banning certain memorials from a multiconfessional nondenominational cemetery in Boca Raton, Florida. The book portrays the unsuccessful struggle of Catholic, Protestant, and Jewish families in Boca Raton to preserve the practice of placing such religious artifacts as crosses and stars of David on the graves of the city-owned burial ground.
Sullivan demonstrates how, during the course of the proceeding, citizens from all walks of life and religious backgrounds were harassed to define just what their religion is. She argues that their plight points up a shocking religion cannot be coherently defined for the purposes of American law, because everyone has different definitions of what religion is. Indeed, while religious freedom as a political idea was arguably once a force for tolerance, it has now become a force for intolerance, she maintains.
A clear-eyed look at the laws created to protect religious freedom, this vigorously argued book offers a new take on a right deemed by many to be necessary for a free democratic society. It will have broad appeal not only for religion scholars, but also for anyone interested in law and the Constitution.
Sullivan demonstrates how, during the course of the proceeding, citizens from all walks of life and religious backgrounds were harassed to define just what their religion is. She argues that their plight points up a shocking religion cannot be coherently defined for the purposes of American law, because everyone has different definitions of what religion is. Indeed, while religious freedom as a political idea was arguably once a force for tolerance, it has now become a force for intolerance, she maintains.
A clear-eyed look at the laws created to protect religious freedom, this vigorously argued book offers a new take on a right deemed by many to be necessary for a free democratic society. It will have broad appeal not only for religion scholars, but also for anyone interested in law and the Constitution.
320 pages, Paperback
First published January 1, 2005
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Displaying 1 - 16 of 16 reviews
September 1, 2022
This book almost certainly could be shorter, as it suffers from the typical academic tendency of saying the same thing multiple times in circuitous ways, but overall it's interesting and informative, using a case out of Florida to highlight how poorly the American judicial system handles questions of religion and religious freedom. Sullivan argues instead that the country shift away from protecting religion and instead move toward protecting individuals – that a more generic notion of freedom would be more effective and less problematic for the rights of minorities of all stripes, including religious minorities. Whatever one thinks of her suggestion (never mind the chances of it actually coming to pass in a country whose courts seem more eager to expand the scope of religious freedom rather than restrict it), Sullivan's book provides a thorough, on-the-ground example of how platitudes about a concept everyone thinks they cherish fall apart when faced with the reality of actually implementing it.
May 28, 2012
Learned and subtle argument about the impossibility of religious freedom, but too much time is spent on the court case the author uses as an example or argument.
Sullivan argues that religious freedom is impossible because it's impossible for the state to determine orthodoxy or non-orthodoxy. The measure they use the author calls "protestant" as in it's individualistic, relies on a practice being enshrined in a sacred text, and is voluntary. This is opposed to catholic as in oral, coercive, and collective. These are temperaments not bound to the religions named-a "dominionist" Protestant who believes in the establishment of Christianity as a national religion is catholic in his aims.
However protestant methods are impossible because most of modern american religion is what is called "lived" religion, and not directly tied or even provable to even a loose protestant standard. The case they discusses is about a coalition of various religious plantiffs protesting the removal of the religious symbols they used to decorate the cemetery they interred their dead in because they didn't meet the cemetery's standards. It's hard to make a synopsis of how the case challenges current standards of religious accommodation, and you have to read the book to see.
The end result though, is that it's more or less impossible to treat religious freedom as such, and that only a focus on equality of persons can help. I don't think they go into much detail on what that means in real terms, however. The focus is on protecting difference in general than determining whether or not a particular difference is religious, and religious people would have to lobby similar to other interest groups without any special religious protection. The transformation would be to enable people to have free lives out of the state, a radical freedom as it's called.
I'm not sure how that would work, as the point to religious freedom is to protect unpopular religions against more powerful belief systems. Indonesia is briefly used as an example, but I don't think anyone would argue it's really that much better than the current system, if not worse. The argument is very subtle though, and again I'm probably losing a lot in describing it. This is a book you definitely want to reread many times to get the full flavor of it.
However, it's a relatively brief book that is mostly focused on the court case. The Kindle edition is 158 pages of text and another 130 more in appendixes and footnotes, and you are done at 48% of the file. I think more information on what a post-religious freedom society would be like would have been helpful. The problem is that if the case she cites were post-rf, they would have had no recourse at all to the courts-the rules against decorations are clear, and there is no argument that the city would have to provide for all displays on city land that would hold water. Interesting book, though.
Sullivan argues that religious freedom is impossible because it's impossible for the state to determine orthodoxy or non-orthodoxy. The measure they use the author calls "protestant" as in it's individualistic, relies on a practice being enshrined in a sacred text, and is voluntary. This is opposed to catholic as in oral, coercive, and collective. These are temperaments not bound to the religions named-a "dominionist" Protestant who believes in the establishment of Christianity as a national religion is catholic in his aims.
However protestant methods are impossible because most of modern american religion is what is called "lived" religion, and not directly tied or even provable to even a loose protestant standard. The case they discusses is about a coalition of various religious plantiffs protesting the removal of the religious symbols they used to decorate the cemetery they interred their dead in because they didn't meet the cemetery's standards. It's hard to make a synopsis of how the case challenges current standards of religious accommodation, and you have to read the book to see.
The end result though, is that it's more or less impossible to treat religious freedom as such, and that only a focus on equality of persons can help. I don't think they go into much detail on what that means in real terms, however. The focus is on protecting difference in general than determining whether or not a particular difference is religious, and religious people would have to lobby similar to other interest groups without any special religious protection. The transformation would be to enable people to have free lives out of the state, a radical freedom as it's called.
I'm not sure how that would work, as the point to religious freedom is to protect unpopular religions against more powerful belief systems. Indonesia is briefly used as an example, but I don't think anyone would argue it's really that much better than the current system, if not worse. The argument is very subtle though, and again I'm probably losing a lot in describing it. This is a book you definitely want to reread many times to get the full flavor of it.
However, it's a relatively brief book that is mostly focused on the court case. The Kindle edition is 158 pages of text and another 130 more in appendixes and footnotes, and you are done at 48% of the file. I think more information on what a post-religious freedom society would be like would have been helpful. The problem is that if the case she cites were post-rf, they would have had no recourse at all to the courts-the rules against decorations are clear, and there is no argument that the city would have to provide for all displays on city land that would hold water. Interesting book, though.
June 8, 2012
Author Winnifred Sullivan is a lawyer turned religion scholar who argues for a very interesting thesis in this book. Her argument is, as you can guess from the title, that full religious freedom is actually impossible, that it is an American myth. I had heard other authors talk about how the separation of church & state coupled with the guarantee of religious freedom makes for an interesting dilemma in political theory, but Sullivan puts it in a very interesting light. She essentially argues that because all free exercise lawsuits basically ask the courts to define what expressions of religion deserve legal protection, religion is still defined by the government and is therefore not fully free, nor can it be. If you think about it, it makes sense. Take the cases of child neglect charges against Christian Science parents who refused medical treatment for their children. This is an exercise of their religious freedom, but can we allow this? Since our society must put restraints on certain expressions of religion, is there such a thing as religion freedom?
To make her point, Sullivan gives examples from the Warner case that took place in Florida. She argues that the judge in the case relied more on his personal theology than the testimony of the witnesses and experts during the trial. She also talks about the Religious Freedom Reform Act (and its different manifestations in the states) and argues that it basically gave special status in this country to religious people, which itself amounts to something unconstitutional.
My main critique of the book is that it spends too much time on one case. I understand why the author did it...the case she discusses is a case that she herself was involved in. But this book could be much better if it contained a pool of different cases that illustrate the author's points. Good book, though.
To make her point, Sullivan gives examples from the Warner case that took place in Florida. She argues that the judge in the case relied more on his personal theology than the testimony of the witnesses and experts during the trial. She also talks about the Religious Freedom Reform Act (and its different manifestations in the states) and argues that it basically gave special status in this country to religious people, which itself amounts to something unconstitutional.
My main critique of the book is that it spends too much time on one case. I understand why the author did it...the case she discusses is a case that she herself was involved in. But this book could be much better if it contained a pool of different cases that illustrate the author's points. Good book, though.
October 27, 2017
Oftentimes when it comes to legal cases of religious freedom, the state is choosing the losers and the winners, either directly or indirectly. This is because the law essentializes religion to be only one thing when it is often multiple. The modern legal system, in its empirical, positivist modes of thought, misunderstands religion. Religion is often transient and nonbinary, developed from modes of thought separate from the trajectory of the modern Enlightenment western modes of thought which formed our legal system as we know it today. Importantly, this legal system, as an inherent characteristic of its structure, cannot change itself as fast as religion does. The law must be trans-historical and stable to be applied in various cases while most contemporary theories of religion are by nature specific to a historical context.
Sullivan begins the final chapter of The Impossibility of Religious Freedom with a discussion of two seemingly opposed views which are held by the plaintiffs in the Warner trial. The decidedly religious plaintiffs simultaneously knew that “the objects they assembled” on the graves of their loved ones were “ordinary rocks and plants and cement statues, but they also knew that these things represented all that was holy.” (Sullivan, 142-143) I say that the plaintiffs were “decidedly” religious because their religiosity was ultimately (after much interrogation) declared sincere by Judge Ryskamp (Sullivan, 6). However the plaintiff’s grave decorating was seen as not necessarily required by their respective religious traditions. Therefore, in the court’s eyes, a neutral law that prohibits these practices cannot be a substantial burden on the religious practices of the plaintiffs. The court presumed that religion consists of stable doctrine and law which must be highly textual and able to be referenced. This places religious peoples as passive agents in their traditions. However, the plaintiffs understood their religion to be a formative process, formed by “a mix of motivations and influences, familial, ecclesiological, aesthetic, and political.” (Sullivan, 36) In this sense, the plaintiffs were both formed by their religion, and engaged in forming their religion through their activity in the world. It is not necessarily the symbols involved in these formative processes that religious people engage in that matter, but what people do with them. As Sullivan points out, the historical usage of the Star of David was not investigated at all in the trial, it was “simply accepted as incontrovertibly religious.” (Sullivan, 43) However, the plaintiffs were pushed until they were forced to admit that other objects they placed on graves for religious reasons were not, as objects in and of themselves, holy in any way, such as the marble chips Ms. Warner placed on her husband and son’s graves.
Speech is as much a formative process of one’s religion as any other action. Therefore, by the mere act of bringing their case into the courtroom, the plaintiffs were forced to publicly formulate their religion in real time. They were basically being asked to outline all of the various motivations and influences leading to their actions which they deemed to be religious by an interrogator who only understood legitimate religious influences to be those which are as strictly binding as legal doctrine. “The question at trial was: Did an external authority regard the plaintiffs’ actions as ‘central to’ or ‘necessary to’ their religious traditions? Were the plaintiffs ‘required’ to do what they did? As if the law could take cognizance only of what could be construed as a competing set of norms, norms finding their authority in an alternative but recognizable religio-legal structure.” (Sullivan, 111)
At what point can an action of a religious individual be said to be a religious action or not? This question is one that courts would like to avoid. It is easier for courts to simply determine if an individual’s actions can be seen to be in line with some ordained law. The City understood religion to be like secular law in that it simply involved passive religious subjects fitting their actions to a prescribed set of rules, regulations, and obligations (Sullivan, 36). It is as if the legal system would like all religions to follow the same structure as legal code and contain a canonized set of laws and orders to be followed. In this sense, “modern law wants an essentialized religion.” (Sullivan, 55) However, as most scholars of religion come to believe through their studies: there is no one true experience or expression of religion, and this is a nightmare for the court because then how can religion be regulated? This is ironic considering several religion scholars were called upon as “expert witnesses” in the trial. The court is afraid of religion being an intensely personal or private activity as this is hard to regulate. However, religion is not personal, there is a strong connection to a community, dead and alive, social and emotional. The court is afraid of an individualistic religion because in a way they have forced themselves into that definition, “constitutionally it’s impossible for courts to recognize religious authority as defining orthodox practice and that, therefore, constitutionally courts have to look to the individual. But it doesn’t mean that the individual is not seen in the context of the community” and yet, “a lack of formal authority did not sever all ties between the individual and the norms and practices of religious communities. The Warner plaintiffs, like all persons who are religiously motivated, were profoundly connected to a wider community, dead and alive.” (Sullivan, 87-88)
This does not make religion any easier to regulate though because the question then becomes: Where is this community? What do they say? These are not easy questions to answer, even for ordained religious authorities. After all, “We live increasingly in a world of diaspora religious communities in which all religions are everywhere, in which all religions everywhere are governed by secular legal regimes, and in which all religions everywhere are being reinvented by their adherents to suit new circumstances.” (Sullivan, 3) However these are questions that the plaintiffs were being forced to answer in real time in the courtroom.
Institutional powers exhibit anxiety about the anarchy which an individualistic understanding of religion ostensibly allows for. Sullivan counters that this “religious anarchy” isn’t a real danger. Whatever is meaningful to people is a possibility for thinking about religion. Sullivan sees these lived religious practices as coming out of communal relations. But at the same time, Sullivan doesn’t care about defining religion, making her completely unhelpful to the court system as long as they insist on upholding “religious freedom” as they understand it. Unfortunately, seeing as the courts are unwilling to let their idea of religious freedom go, Sullivan is unhelpful to the plaintiffs as well, and they ultimately lose the trial.
Sullivan sees religion clauses in the law as a real problem. She says people are abused by the system. How people want to define their world and what they want to do is not possible because there are some types of religiosity that are more likely to be recognized by the state than others. Sullivan’s concern with freedom of religion is that it is not free. It doesn’t protect all religion, but only some religion.
Sullivan begins the final chapter of The Impossibility of Religious Freedom with a discussion of two seemingly opposed views which are held by the plaintiffs in the Warner trial. The decidedly religious plaintiffs simultaneously knew that “the objects they assembled” on the graves of their loved ones were “ordinary rocks and plants and cement statues, but they also knew that these things represented all that was holy.” (Sullivan, 142-143) I say that the plaintiffs were “decidedly” religious because their religiosity was ultimately (after much interrogation) declared sincere by Judge Ryskamp (Sullivan, 6). However the plaintiff’s grave decorating was seen as not necessarily required by their respective religious traditions. Therefore, in the court’s eyes, a neutral law that prohibits these practices cannot be a substantial burden on the religious practices of the plaintiffs. The court presumed that religion consists of stable doctrine and law which must be highly textual and able to be referenced. This places religious peoples as passive agents in their traditions. However, the plaintiffs understood their religion to be a formative process, formed by “a mix of motivations and influences, familial, ecclesiological, aesthetic, and political.” (Sullivan, 36) In this sense, the plaintiffs were both formed by their religion, and engaged in forming their religion through their activity in the world. It is not necessarily the symbols involved in these formative processes that religious people engage in that matter, but what people do with them. As Sullivan points out, the historical usage of the Star of David was not investigated at all in the trial, it was “simply accepted as incontrovertibly religious.” (Sullivan, 43) However, the plaintiffs were pushed until they were forced to admit that other objects they placed on graves for religious reasons were not, as objects in and of themselves, holy in any way, such as the marble chips Ms. Warner placed on her husband and son’s graves.
Speech is as much a formative process of one’s religion as any other action. Therefore, by the mere act of bringing their case into the courtroom, the plaintiffs were forced to publicly formulate their religion in real time. They were basically being asked to outline all of the various motivations and influences leading to their actions which they deemed to be religious by an interrogator who only understood legitimate religious influences to be those which are as strictly binding as legal doctrine. “The question at trial was: Did an external authority regard the plaintiffs’ actions as ‘central to’ or ‘necessary to’ their religious traditions? Were the plaintiffs ‘required’ to do what they did? As if the law could take cognizance only of what could be construed as a competing set of norms, norms finding their authority in an alternative but recognizable religio-legal structure.” (Sullivan, 111)
At what point can an action of a religious individual be said to be a religious action or not? This question is one that courts would like to avoid. It is easier for courts to simply determine if an individual’s actions can be seen to be in line with some ordained law. The City understood religion to be like secular law in that it simply involved passive religious subjects fitting their actions to a prescribed set of rules, regulations, and obligations (Sullivan, 36). It is as if the legal system would like all religions to follow the same structure as legal code and contain a canonized set of laws and orders to be followed. In this sense, “modern law wants an essentialized religion.” (Sullivan, 55) However, as most scholars of religion come to believe through their studies: there is no one true experience or expression of religion, and this is a nightmare for the court because then how can religion be regulated? This is ironic considering several religion scholars were called upon as “expert witnesses” in the trial. The court is afraid of religion being an intensely personal or private activity as this is hard to regulate. However, religion is not personal, there is a strong connection to a community, dead and alive, social and emotional. The court is afraid of an individualistic religion because in a way they have forced themselves into that definition, “constitutionally it’s impossible for courts to recognize religious authority as defining orthodox practice and that, therefore, constitutionally courts have to look to the individual. But it doesn’t mean that the individual is not seen in the context of the community” and yet, “a lack of formal authority did not sever all ties between the individual and the norms and practices of religious communities. The Warner plaintiffs, like all persons who are religiously motivated, were profoundly connected to a wider community, dead and alive.” (Sullivan, 87-88)
This does not make religion any easier to regulate though because the question then becomes: Where is this community? What do they say? These are not easy questions to answer, even for ordained religious authorities. After all, “We live increasingly in a world of diaspora religious communities in which all religions are everywhere, in which all religions everywhere are governed by secular legal regimes, and in which all religions everywhere are being reinvented by their adherents to suit new circumstances.” (Sullivan, 3) However these are questions that the plaintiffs were being forced to answer in real time in the courtroom.
Institutional powers exhibit anxiety about the anarchy which an individualistic understanding of religion ostensibly allows for. Sullivan counters that this “religious anarchy” isn’t a real danger. Whatever is meaningful to people is a possibility for thinking about religion. Sullivan sees these lived religious practices as coming out of communal relations. But at the same time, Sullivan doesn’t care about defining religion, making her completely unhelpful to the court system as long as they insist on upholding “religious freedom” as they understand it. Unfortunately, seeing as the courts are unwilling to let their idea of religious freedom go, Sullivan is unhelpful to the plaintiffs as well, and they ultimately lose the trial.
Sullivan sees religion clauses in the law as a real problem. She says people are abused by the system. How people want to define their world and what they want to do is not possible because there are some types of religiosity that are more likely to be recognized by the state than others. Sullivan’s concern with freedom of religion is that it is not free. It doesn’t protect all religion, but only some religion.
November 3, 2018
Sullivan narrates the story of religious freedom denied in Warner v. Boca Raton to uncover the inherent impossibility of religious freedom. The argument is that protecting religion requires defining religion, and defining religion inevitably excludes, especially minority faiths and folk religions that rely on oral/communal traditions rather than institutional and historical precedent. She also thinks religious freedom leads to privilege for those claiming religious protections.
December 25, 2023
Incredible textbook, so entertaining. I read this for my "Religion and the U.S Supreme Court" class. Sullivan is funny and she knows her stuff. Go read this!
recommended for:
- people with an interest in how USAmerican law intersects with lived religion
- people with an interest in USAmerican funerary rituals
- people who want to read a foundational text in US religious studies
recommended for:
- people with an interest in how USAmerican law intersects with lived religion
- people with an interest in USAmerican funerary rituals
- people who want to read a foundational text in US religious studies
October 11, 2021
One of my interns recommended this book. She’s working on a religious literacy project and has been a wonderful resource to share thinking and questioning about religion in a museum collection. We spend a lot of time talking about explicit and implicit religion.
Sullivan too focuses on the explicit and implicit, what we “know” as religion (based on text or the religious institution) and what is more vague, personal belief (based on family practice or tradition). While much of the legal language and nuance was lost on me, it’s a fascinating read on what is religion and how we find, create and define religion as part of our identify.
Sullivan too focuses on the explicit and implicit, what we “know” as religion (based on text or the religious institution) and what is more vague, personal belief (based on family practice or tradition). While much of the legal language and nuance was lost on me, it’s a fascinating read on what is religion and how we find, create and define religion as part of our identify.
March 15, 2019
Probably the best text on the intersection of law and religious studies that I have read so far.
The case is sincerely moving and fascinating and Sullivan is both compassionate and analytical in her approach to it. Occasionally, I felt she wasn’t quite as precise with her theories on religion and the impossibility of its definition but her brilliant writing and deep understanding of law made up for it.
The case is sincerely moving and fascinating and Sullivan is both compassionate and analytical in her approach to it. Occasionally, I felt she wasn’t quite as precise with her theories on religion and the impossibility of its definition but her brilliant writing and deep understanding of law made up for it.
October 31, 2023
Looks at the case in Boca Ratón of gravesites and decorating them. Has to do with religion and with RTNL! Religion has to do with everything and is very personal. This book shows how religion is impossible for the law to define and enforce without discriminating against someone. When the Judge Ryskamp rules against the plaintiffs, he actually argues against himself and confuses what he is saying with language that is supposed to rule for the plaintiffs- he ends up ruling against them.
July 27, 2025
Sullivan takes a case for which she served as an expert witness and does a deep dive on why it is so problematic to ensure religious freedom with the law. She argues that seeking to grant equality rather than freedom of religious expression would be a more promising approach. Religious beliefs are too individual and disparate in today's culture to evaluate, which means an unfair and unequal application of the right to their expression.
December 28, 2018
Sullivan's writing is dry and it takes 100 or so pages for her to articulate her thesis, but the content of its implications are mind-boggling and changed the way I think about religious liberty & its coveted position within the law. Her account of a Florida state SC case is an engaging introduction to RFRAs and the difficulties of determining what religion is inside the court.
December 9, 2020
For school (RLG312 at University of Toronto Mississauga)
Great book. Clear and concise and it flowed really smoothly.
I completely agree with the problems and issues that Sullivan raises concerning religious freedom and I really like her argument.
One of the most interesting books I've read in school by far.
Great book. Clear and concise and it flowed really smoothly.
I completely agree with the problems and issues that Sullivan raises concerning religious freedom and I really like her argument.
One of the most interesting books I've read in school by far.
November 24, 2021
This book was such an incredible read, and Sullivan did a great job breaking down religiosity in terms of the law. It truly changed my opinion on religion and how it should be viewed within the law, especially here in the United States.
Sullivan did an excellent job arguing her point, and I recommend this book to everybody. It is such a great and different ay to view religion in America.
Sullivan did an excellent job arguing her point, and I recommend this book to everybody. It is such a great and different ay to view religion in America.
December 27, 2019
This is a great work of intellectual writing but not much more than that.
March 15, 2015
First, I have to say that I strongly disagree with other reviewers who said that Sullivan should have used more cases to make her point. This in-depth look at a single case was supplemented with numerous references to other cases and rulings, and offered a first-hand, intimate examination of an important, touching, and fascinating case with huge legal implications.
Sullivan’s The Impossibility of Religious Freedom is an account of the Warner vs. Boca Raton court case, and its implications for legally mandated religious freedom. The book addresses a number of questions through the examination of this case: What counts as religion? Can we avoid religious hierarchy? Can we protect “lived religion”?
The introduction and first chapter explain the setting for the case. A group of plaintiffs were arguing that the rules for grave decorations in the municipal cemetery of Boca Raton, Florida, burdened their religious expressions. The city argued that there were reasons for the rules, and that all plaintiffs had been informed of the rules beforehand. This was the first case in Florida which would try the state’s Religion Freedom Restoration Act, and as such was important for interpreting the law and establishing precedent. The Florida RFRA defines an exercise of religion as, “an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief” (23). The emphasis is mine, and I believe that the interpretation of the court ignored this section of the Act because significant emphasis was placed on authority and establishment during the trial. For example, expert witness Daniel Pals drew “a clear hierarchy to his distinctions. Churches and synagogues are substantial - they are integral and essential - while plaintiffs’ religious practices are insubstantial” (79). This theme was repeated over and over, and in direct opposition to the statement of the Act. In order to rule how to effect the law, “Religion therefore had to be measured and bounded by an expert test” (105), a nearly impossible task and, even worse, one which undermines “religious belief and practice by giving government authority over religious authenticity” (143). The court solved this problem by giving authenticity to religious establishments rather than individuals, a decision which leaves lived religion as well as non-hierarchical faiths (American pagan paths, for example) open to discrimination.
One thing which confused me was Sullivan’s legal answer to this thorny issue. She concludes her book by saying, “Such a right may not be best realized through laws guaranteeing religious freedom but by laws guaranteeing equality” (159). I wish she had elaborated more on what exactly this means because to me it’s very abstract. She convinced me that guaranteeing religious freedom is, legally, impossible, but her alternative was not especially well-explained.
Sullivan’s The Impossibility of Religious Freedom is an account of the Warner vs. Boca Raton court case, and its implications for legally mandated religious freedom. The book addresses a number of questions through the examination of this case: What counts as religion? Can we avoid religious hierarchy? Can we protect “lived religion”?
The introduction and first chapter explain the setting for the case. A group of plaintiffs were arguing that the rules for grave decorations in the municipal cemetery of Boca Raton, Florida, burdened their religious expressions. The city argued that there were reasons for the rules, and that all plaintiffs had been informed of the rules beforehand. This was the first case in Florida which would try the state’s Religion Freedom Restoration Act, and as such was important for interpreting the law and establishing precedent. The Florida RFRA defines an exercise of religion as, “an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief” (23). The emphasis is mine, and I believe that the interpretation of the court ignored this section of the Act because significant emphasis was placed on authority and establishment during the trial. For example, expert witness Daniel Pals drew “a clear hierarchy to his distinctions. Churches and synagogues are substantial - they are integral and essential - while plaintiffs’ religious practices are insubstantial” (79). This theme was repeated over and over, and in direct opposition to the statement of the Act. In order to rule how to effect the law, “Religion therefore had to be measured and bounded by an expert test” (105), a nearly impossible task and, even worse, one which undermines “religious belief and practice by giving government authority over religious authenticity” (143). The court solved this problem by giving authenticity to religious establishments rather than individuals, a decision which leaves lived religion as well as non-hierarchical faiths (American pagan paths, for example) open to discrimination.
One thing which confused me was Sullivan’s legal answer to this thorny issue. She concludes her book by saying, “Such a right may not be best realized through laws guaranteeing religious freedom but by laws guaranteeing equality” (159). I wish she had elaborated more on what exactly this means because to me it’s very abstract. She convinced me that guaranteeing religious freedom is, legally, impossible, but her alternative was not especially well-explained.
March 22, 2014
Sullivan points out the inherent contradictions of a constitutional system where anything can count as religion (to say otherwise is to violate the establishment clause), but social order demands the limiting of some (religious) behaviors, thus violating the free exercise clause. Sullivan suggests removing special provisions for religion from the Constitution and treating all religious behaviors/speech as aspects of other freedoms articulated in the Bill of Rights. Interesting suggestion.
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