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Interior of Townsville library, ca. 1948
The Brink

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.

Is fiction real? When it comes to novels, short stories, and narrative prose, we tend to evaluate fiction in terms of its ability to transport us. Its appeal lies precisely in its disconnect from reality (or at least the reality of the reader). Yet it is also a cliché that the best writers “write what they know” and that good fiction is, in some sense beyond the literal, “true.” Indeed, writing of the rise of novelised and third-person autobiographies in the twenty-first century, author and critic Tim Parks argues that this genre—which he terms “reality fiction”—is nothing new. Given the intimacy of the relationship between the writer and the work they produce, Parks suggests, “‘fiction’ was always a fig leaf.”

Reading Winnifred Fallers Sullivan’s masterful Church State Corporation, I found the term “reality fiction” repeatedly coming to mind. Sullivan’s starting point is that “we cannot understand [US law on religion] without thinking again carefully about the church” (11). “The church,” she argues, is not simply a synonym for organised or institutional religion. Rather, it is an entity with its own mystical sovereignty, a sovereignty that seems to precede and exceed the powers and privileges of individual persons (regardless of whether they relate to this body as members, apostates, opponents, or otherwise). In Sullivan’s analysis, the church—alongside its allies, the state and the corporation—exhibits a kind of agency that goes well beyond the symbolic power implied by its status as a “legal fiction.”

One way to read Church State Corporation, then, is as an answer to the following question: what if these eponymous entities were seen as examples not of legal fiction—a convenient shorthand used by judges and lawyers to decide cases involving human collectivities—but of reality fiction instead? Seen in this light, a second question quickly follows: given the nature of these realities, what kind of politics would be required to change them?

Readers of fiction require an active imagination, but so do judges, juries, and readers of law. Church State Corporation is equal parts jurisprudential critique and a call to exercise our collective capacity to reimagine. Indeed, Sullivan’s remarkable concluding chapter is something of an experiment in (legal) reality fiction. Bringing together, inter alia, Anthony Bourdain, Aretha Franklin, Barack Obama, and the litigants in Masterpiece Cakeshop, she argues for both a new understanding and a new practice of disestablishment. Rather than viewing disestablishment as an historical event in which church and state are disaggregated, she frames it as a process through which a distinctively American “church-in-law” comes into being.

American churches-in-law have been instrumental in displacement, genocide, and enslavement. Yet the process of disestablishment also contains within it “new possibilities for justice” (179). An alternative church-in-law, she suggests, would include the “religious” not as exceptions to be isolated out from the general public, the recipients of either vilification or praise, but as participants in our shared obligation to reform common life.

“Can the church-in-law be otherwise?” As with all thought experiments, this one has a Hydra-like quality. Confronting it head-on leads to a proliferation of equally difficult questions. One question worth considering—one we might have some control over—is whether our scholarship can be otherwise. Sullivan invites us to take theology seriously “without establishing it,” an endeavour she describes as “speaking back theologically to the law” (20).

As an anthropologist of evangelical Christianity, I find myself, in the words of my interlocutors, “convicted” by this call. For those of us who practice and produce ethnography (another genre, I would argue, of reality fiction), “taking theology seriously” is something we have always aspired to.

Yet it is also something that many of us, if we are honest, know we have failed to achieve. (Listening to a Christian declare that she was not worried about COVID-19 because she was “covered in Jesus’s blood,” scholar of religion Robert Orsi began to question his immediate urge to render this ontology comprehensible to outsiders. Given the discomfort her sentiment caused him, was his “drive to translate” really a way of asking: “what is to be done about this woman?”) The strange does not always consent to becoming familiar. And so we are tempted to reduce our desire to “take theology seriously” to a two-step exercise in cultural relativism: first, a description of the beliefs, practices, and affects that make up our interlocutors’ socio-moral worlds; second, a simple refusal to pass judgment on their content.

As I understand her, Sullivan is asking us to rethink this second step. She is not interested in narratives of modernity that posit “real” religion as private and otherworldly—she sees no value in Enlightenment fantasies of religion domesticated. Nor is she advocating that we simply leave these persons be, that we take them at their word when they claim their actions are “sincerely” religious and, therefore, beyond the reach of the law. Taking theology seriously may involve challenging those who make theological claims.

Writing of Jack Phillips, the Colorado baker who refused to make a wedding cake for a gay couple, Sullivan asks: “Could we then say back to Phillips that Jesus ate with sinners? Or that all are sinners? Or ‘judge not that ye be not judged’? Or that hospitality and table fellowship have been virtues in many traditions? And then listen to his response” (175).

The anthropological drive to render sensible the social worlds of others without passing judgment on them can appear naïve, if not a form of complicity or moral cowardice. (As a graduate student, I was repeatedly asked to justify why I wasn’t more critical of the conservative Christian activists among whom I carried out fieldwork. These Christians espoused a theology similar to that of Jack Phillips, the reluctant baker.) Yet there is a reason that we do not, as a rule, see it as our job to change our interlocutors’ minds, even when we profoundly disagree with them. As anthropology has struggled to shed its reputation as the handmaid of colonialism, we have committed ourselves to understanding others without looking to domesticate or debunk political theologies that are not our own (although this is increasingly being called into question; see the recent debate prompted by calls for an “immoral anthropology”).

Of course, the idea that anthropologists do not “judge” their interlocutors is a(nother) disciplinary fiction. (The posthumously published diaries of Bronisław Malinowski, a pioneering ethnographer and public advocate of cultural relativism whose private writings revealed a racist disdain for his interlocutors, have more than burst this bubble.) And theologies are not static. They shift as a result of time, geography, external pressure, and personal revelation. Still, my guess is that many of us would hesitate before adding ourselves to that list of causes—not least because, as I know from fieldwork involving many acts of engagement similar to the one Sullivan imagines with Phillips, the result is rarely a changed mind on either side.

What if listening to, talking back, and sharing a table with those whose theologies are radically unfamiliar (maybe even repugnant) is not enough to bring about a church-in-law “otherwise”? What if we are all—Christian bakers, gay couples, legal anthropologists—more invested in “consuming religion” than we care to admit (175)?

My question, I think, is about the relationship between scholarship and political change (or, to put it another way, scholarship and reformation). Church State Corporation is a political project, one I am simultaneously sympathetic to and yet unsure of the scholar’s role in. Can ethnographers like myself “take theology seriously” without compromising the anthropological dictum—or long-cherished fiction—to render the strange familiar and the familiar strange? Does the call to take part in the collective reconstruction of churches-in-law apply equally to all of us? Might some of us have a different role in “[reimagining] our common life” (175)? How many of us are called to (re)author the law’s reality fiction, and how are we to go about it?

Speaking of the application of the Religious Freedom Restoration Act to private, profit-making enterprises, Justice Samuel Alito suggested that although the personhood of corporations is a legal fiction, “it is important to keep in mind that the purpose of this fiction is to provide protection for human beings.” But as Sullivan’s account makes clear, the kinds of rights that accrue to such mystical legal beings as the church, the state, and the corporation often exceed the rights ostensibly enjoyed by those whose personhood, legal or otherwise, is evinced by their flesh, blood, bone, and spirit. In the end, Church State Corporation is a powerful reminder that “all rights-bearing persons, individual and corporate, are … artificial” (108 fn55), their rights recognised on a whim rather than guaranteed by nature.

This is a sobering thought; but it is also an exciting one. It points towards both the urgency of and the possibilities inherent in reform. And this, I think, is what Sullivan ultimately wants us to remember: that without the collective work of reimagining, to seek justice through law alone is to succumb to legal fiction.

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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