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

Winnifred Fallers Sullivan’s recent book Church State Corporation: Construing Religion in US Law is an insightful inquiry into the complex and ambiguous role of religion in the law of the United States of America. Sullivan analyzes a handful of recent Supreme Court cases which involve the contested intersection of law and religion. The book provides helpful explanations of the issues at stake in each case, as well as deeply learned and carefully crafted histories that help the reader understand the background of legal precedent in each instance. Simply put, spending time with this book is deeply rewarding. One learns a great deal.

There is an intriguing ambiguity in the title of the book, which gestures toward one of the theses of the book itself: Church State Corporation. Are “Church” and “State” here adjectives modifying “Corporation,” as would be made explicit by rendering the title Church-State-Corporation? Or are the three terms meant to be a list of three entities, as “Church, State, and Corporation” would suggest? The argument of the book would lead one to conclude it is some combination of both. Indeed, it is the ambiguity that is the very point. Sullivan contends that in the American religious and legal imaginary the concepts of church, state, and corporation are interwoven and mutually defining. The law of the corporation comes to define what it means to be the church, while the meaning of church comes to define what it means to be a corporation. Meanwhile, the state lurks in the background, as the ever-present mirror of both church and corporation.

Making my way through this fascinating book, learning a great deal on every page, I found myself raising the occasional question. For example, what does Sullivan make of the unanimity of the court in Hosanna-Tabor v. EEOC? It’s clear that Sullivan takes issue with the reasoning of Chief Justice Roberts in the case, but what of the choices of Justice Ginsburg, Justice Breyer, and Justice Sotomayor to join the decision? Sullivan discusses Justice Alito’s concurring opinion but does not point out that Justice Kagan joined this concurring opinion. Sullivan acknowledges Tuttle and Lupu’s interpretation of the court’s unanimity, and seems to disagree with them, but does not give her own rival interpretation of the “mystery of unanimity.”

I am left with other questions as well. Chief Justice Roberts speaks of “the Church” with the definite article in his drafting of the Supreme Court’s decision in Hosanna-Tabor. Invoking “the Church” in federal court is indeed striking and perhaps even disturbing. But is there not a less troubling interpretation, a kind of deflationary reading? Is it not possible that in this case “the Church” is spoken of, in the first instance, not to privilege Christianity but instead simply because in the case at hand, the religious group involved was in fact a Christian church?

Secondly, and more importantly, is it not possible that in referring to “the Church,” Justice Roberts (along with the eight other justices who joined the decision) is assuming that “the Church” is a kind of synecdoche, a stand in for religious groups more generally? Indeed, would we not assume that if a Hindu or Buddhist temple came before the Supreme Court in a case with similar parameters that the decision of Hosanna-Tabor would be applied to the temple? Or, are we supposed to believe that the Court would actually decide the case by arguing that the finding of Hosanna-Tabor applies only to “the Church,” referring exclusively to the transhistorical, mystical Body of Christ as understood in the Christian tradition? That hardly seems plausible to me. Granted that in the US context religion is often pressured to take on the general shape of Christianity, indeed Protestant Christianity. But is it not nonetheless possible that “the Church” in this case is but a messy, perhaps irresponsibly messy, way of referring to religion more generally?

The title of my essay, “Going to Law,” refers to a moment in the story of Hosanna-Tabor, when the school faulted Cheryl Perich for “going to law,” allegedly against the teaching of Paul in 1 Corinthians. The phrase is instructive, for in each of the cases discussed in Sullivan’s book, of course, someone has “gone to law.” Courts only get involved in religion when someone or some group “goes to law.” The courts may not get it right, but they can hardly be faulted for getting involved in religion. The courts get involved in religion because religion goes to the courts.
As a scholar of law as well as a scholar of religion, Sullivan is a master at showing how the courts often fail adequately to understand religion in their various attempts to deal with legal conflicts where religion is involved (or is claimed to be involved). In each of these cases, however, as I read the book, I continued to ask myself, “what is the alternative?” Judges can hardly avoid the issue when cases come before them in which religion plays some role.

As Sullivan notes in her concluding chapter focusing on Masterpiece Cakeshop v. Colorado Civil Rights Commission, the courts have increasingly tended to accept people at their word when they claim their demand for an exemption is “religious” in nature. This, Sullivan suggests (echoing Smith), means that individuals can claim a religious exemption without showing that their religious objection attaches to any actual religious community or tradition. Sullivan writes, “Litigants today, at least white christian litigants refusing to conform to the law, are not usually asked to offer any evidence that anyone else has such a belief or that their belief is attached to a community, found in a text, or otherwise formalized or institutionalized. The religiousness or not of their belief is not measured according to any specific conception of or history of religion. It is enough that they believe it to be so.”

That seems like a problem, but what is the alternative? It seems the alternative would have to involve the courts studying the religious claims of individuals and testing them against the religious traditions and communities to which the individuals are attached. But this sounds exactly like the kind of tests of “orthodoxy” that Sullivan herself criticizes in The Impossibility of Religious Freedom. Indeed, a key point of that book is that religious practices should not be seen as necessarily attached to official traditions and official religious communities. The spiritual practices of everyday living and dying are religious in nature, not least the ways in which human beings decorate the gravestones of their loved ones, and quite apart from the official teachings of religious organizations.

Perhaps Sullivan’s point is that once one allows for religious exemptions to otherwise neutral laws, one cannot escape the conundrum I have just laid out. Either one allows individuals to demand a “religious” exemption to any law to which they object, assuming such a religious demand is “sincere,” or, conversely, one forces the courts to enter into arguments about what counts as real or “orthodox” religion. The alternative to this conundrum, it seems, is something like the reasoning in Employment Division v. Smith. But my confusion remains, since at various points in this book and elsewhere Sullivan appears to disagree with the reasoning of Smith. Is the problem finally with the First Amendment religion clauses themselves?

Sullivan’s grasp of the complexity of religion (both as an historical and a contemporary phenomenon) entails that she provides no simple solutions. She contests simplistic secularist narratives which suggest that the kinds of problems the book addresses can be solved by simply drawing a sharp line between what is religious and what is non-religious, or between what is a church and what is a corporation, or between what is “the Church” and what is merely “a church.” Religion tends to overflow the boxes into which secularist frameworks hope to consign it. Of course, courts and judges have to make decisions, nevertheless. There will be some kind of settlement, even if only a contested settlement which will be changed down the road. Sullivan’s book can help inform such decisions. They still won’t be perfect, but perhaps they will be better than they would have otherwise been. I am enough of a realist to see that as a significant accomplishment.