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States of Exception

From the Sovereign to the Church

The opposite of sovereignty is not anarchy but rather hope, and hope is accessed through the practice of attending to the complex space (or “broken middle”) of social life, the space that is exposed when purported sovereigns are demystified.

Enough with sovereignty. There are many other political concepts operative today that have concealed but powerful religious histories. We don’t talk about them enough. Why? Sovereignty names a claim of primacy, and in that claim mystifies so as to achieve unwarranted primacy, fitting the joints of a secular, modern political imaginary: individual, state, God (as Jean Elshtain diagnosed).

A focus on sovereignty subordinates law, imagining law to flow from the mystical mouth of the sovereign—or, in secularized form, to be coextensive with sovereignty. Where there is sovereignty, there is law; where there is law, there is sovereignty. But once the self-mystification of sovereignty is suspended, sovereignty becomes one legal concept among others, and law becomes an open, textured field for investigating the complex, sometimes explicit, sometimes implicit connections between theological and legal concepts.

Further, with the force of sovereignty stilled, the God-like individual and the God-like state are no longer the starting and ending points for political-theological analysis. What comes in between matters just as much, if not more; indeed, the complexity of the middle takes primacy and is partially constitutive of the individual and the state. The creatures that inhabit this middle space between individual and state are collectives: unions, clubs, neighborhood associations, guilds, and corporations. In what way do we imagine such organizations in secularized theological terms—with the church offering a template?

In Church State Corporation, Winnifred Fallers Sullivan approaches political theology through law, and she takes the intermediary association, shapeshifting between church and corporation, as her primary object of study. Telling a story of political theology that moves away from sovereignty in these ways is made easier when, as for Sullivan, the setting is the United States. The imagined expansiveness of the land and the relative distance from other nations making claims to sovereignty create fertile ground for exploring the richness of political-theological analysis. While US discussions of law and religion have lazily focused on free exercise and disestablishment, unnecessarily centering imagined sovereigns (state, individual), Sullivan’s work and a growing body of religious studies scholarship pushes in fruitful new directions.

Behind the claim of an individual to freely exercise their religion, haunting that claim, is an understanding of religion’s structure. This same implicit understanding of religion’s structure lurks behind the constitutional prohibition on establishing state religion. Through a close reading of US Supreme Court cases, Sullivan points out that this structure is understood through the spectral figure of the church. Which church? It varies, depending on the court, the judge, the moment in time. The church is, paradigmatically, Christian, but as Sullivan repeatedly reminds us, there are many Christian churches (a point she underscores by refusing to capitalize “christian”), and the category stretches in curious ways when courts apply it to non-Christian religions.

Sullivan’s project in Church State Corporation is to unveil and examine the figure of the church as it operates, explicit or implicit, in US law. If a church is assumed to have ministers who are essential to its existence, and ministers are therefore protected from state interference in carrying out their religious duties, what happens when a religious school claims that its teachers are ministers and should therefore be shielded from disability protection laws? Just as the Supreme Court, in conscientious objector cases, entered the business of defining religion, settling on Paul Tillich’s expansive “ultimate concern” (an avatar of sovereignty), the Supreme Court determined how churches must be organized for personnel to qualify for constitutional protection.

Elsewhere in the book, Sullivan explores how the figure of the church haunts legal reasoning when a corporation claims protection for its religiously motivated practices (denying contraception as part of a health care plan); when a baker claims protection for his religiously motivated discrimination (denying service to a gay couple); and when prisons encourage those incarcerated to participate in religious life (with particular attention to the “Black church” haunting these discussions). Announcing her project, Sullivan writes, “The church, I would argue, as it figures in US law today, and as an object of faith, is inescapably tied to a labile christian mystical political theology, a religious logic that naturalizes it and gives it potency in the American legal imagination, constraining US law’s capacity to acknowledge religion more broadly” (12).

After tracking legal analysis and contextualizing, historically and socially, the figures it relies upon, Sullivan switches genres as she turns in a constructive direction. If we are caught in a bind by law, tethered as it is to a largely invisible religious image, it is through a proliferation of new images that we can move forward. In her concluding reflections, Sullivan takes inspiration from photography, drawing, social media, and popular culture to help us recognize the complexity of the organizations and structures to which we are committed, taking varied and fluid forms, accepting or resisting labels (or both)—including those associated with religion.

Sullivan classes her turn to aesthetics, and her instinct to pluralize and complexify, as theological in a particular sense. It is neither orthodox nor apocalyptic but rather messianic, attentive to the ways in which we imagine otherwise, imagine that which is wholly other than the world we inhabit while still fully inhabiting this world. Put another way, the opposite of sovereignty is not anarchy but rather hope, and hope is accessed through the practice of attending to the complex space (or “broken middle”) of social life, the space that is exposed when purported sovereigns are demystified.

Church State Corporation helpfully pushes discussions in the field of political theology to take law seriously and models what that would look like. It also provides an entry point for religious studies scholars to join conversations in political theology without holding their noses. Sullivan’s book suggests that carefully employing the tools of religious studies when analyzing legal texts (and, more broadly, US culture) necessarily leads to engaging with questions in the field of political theology, not only about the way ostensibly secular figures with partially submerged theological histories continue to animate political life but also about alternative modes of engaging in political life that tap resources irreducible to secular reason.

Church State Corporation

Symposium Essays

From the Sovereign to the Church

The opposite of sovereignty is not anarchy but rather hope, and hope is accessed through the practice of attending to the complex space (or “broken middle”) of social life, the space that is exposed when purported sovereigns are demystified.

The Church as Juridical Fiction

Church-state relations have been examined as a catalyst of legal conflicts, particularly in the United States today. Yet what do we mean when we talk about the “church” in legal contexts?

The Revolutionary Church of Winnifred Fallers Sullivan

Rather than worry about whether other people will come to the table, whether other people will listen, we must, first, come to the table ourselves, be willing to do the revolutionary work of “listening and talking,” proceeding into the real risk of such encounter with likewise real openness to the experience and its transformative effect. This is, to risk profound understatement, a difficult talk.

Going to Law: A Response to Winnifred Fallers Sullivan’s Church State Corporation

Religion continues to bedevil the secularist attempt to relegate it to the private sphere.

Law, Religion, and Reality Fiction

Sullivan’s scholarship reminds us that without the collective work of reimagining, to seek justice through law alone is to succumb to legal fiction.

The Middle Place

We must re-imagine what it is to be human together. That is both a religious and a legal project, in my view.

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