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"Blind Justice" (photo by Tim Green)
States of Exception

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?

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? In her new monograph, Winnifred Fallers Sullivan examines the church as a particular “legal fiction,” a construct modulated by the ongoing juridical treatment of religion (4).

Sullivan scrutinizes seminal cases that concern churches’ activity (several of which were brought to court in the past decade). With this focus, the monograph explores the contemporary juridical treatment of religious institutions, particularly in cases where these institutions seek independence from state law based on institutional or individual claims for freedom of conscience. As the law seeks to define religion, it holds a dialectic with religious institutions’ definition of themselves and of the law: “The church is a unifying metaphor. While church language migrates unevenly across legal and political domains and back, there is a kind of phenomenological exchange between how law imagines law and religion and their relationship and how religion imagines them” (11). 

A main thrust of the book is the ineptitude of the court to decide on whether such claims emanate from a genuine adherence to religion. Upon the disestablishment of the church, state courts face the obligation of securing religious freedom. Sullivan points out that the pursuit of this obligation has been channelled through judges’ presumptuous and, at time, biased conceptions of what counts as a true religious commitment.  

She argues that Christian spirituality serves as the confining model for the law’s treatment of religious institutions:

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).

Sullivan’s use of the term “mystical” is intriguing. In the context of her inquiry, the term appears to pertain to an association of Christianity with an abstract, immaterial notion of faith. This association serves as the—rather ambiguous—grounds for the legal independency of Christian institutions and individuals.  

How are abstract notions—such as religion or faith—translated into the juridical treatment of church institutions? Nowhere is Sullivan clearer about the stakes of courts’ ostensibly biased treatment of religion than in a chapter dedicated to the Black church. She cites cases where Black congregations were not acknowledged as equally legitimate to other religious institutions because of the association of Black religion with criminality. According to Sullivan, religious freedom distinguishes between good and bad religion; Black churches have been categorized as the latter. Subsequently, certain believers have been denied privileges based on their spirituality, even when their requests paralleled existing precedents.   

A major strength of this fascinating and timely monograph is its equally critical treatment of conservative and liberal positions represented in court. Conservative views are often associated with an opposition to contraception or gay marriage, beliefs which are taken as evidence of religious affiliation. Subsequently, individuals and institutions were exempted from following certain state laws on those grounds. But such decisions presume that social views are grounded in one’s “devotion” to religion—though both devotion and religion are elusive characteristics. 

By contrast, liberal positions preside in a recurring demand that the authority of religious institutions be limited toreligious activities. This position disregards, in Sullivan’s mind, the long-lasting entanglement of US citizens’ public lives—and, primarily, their economic activity—with the history of religious institutions. Decisions to allow corporations freedom in matters involving morals are thus inseparable from the church’s institutional framework after disestablishment. Throughout the book, Sullivan claims that liberals and conservatives share the essential fault of dehistoricizingcertain positions on morality. Contemporary social polemics involving sexual freedom, for instance, are considered as tokens for or against religion notwithstanding their ingraining in particular and new cultural concerns.

Sullivan traces this fault in the US Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case had first been brought to court in Colorado. Jack Phillips, a professional baker, had refused to bake a cake for a gay wedding and grounded his refusal in his Christian faith. The Colorado Commission against discrimination ruled against the baker and ordered him to bake cakes for equivalent events. The baker appealed to the Supreme Court, arguing that his religious freedom was affected by this decision. The Supreme Court found that the language used by the Colorado Commission revealed hostility toward religion—the Commission compared the baker’s grounding of his refusal in religion to crimes committed during the holocaust. The Supreme Court subsequently reversed the Commission’s decision.

Sullivan extrapolates from this case principles that she takes to be seminal to US courts’ treatment of religion. First, Phillips’s Christian faith was accepted by the courts unequivocally as the grounds for his refusal to supply his services. Second, this treatment of Christian believers as exempted from state laws demonstrates their isolation from public discourse. After disestablishment, law has become incompetent in engaging in public with religious convictions. Sullivan portrays this incompetence by construing the missed dialogue with Phillips—a conversation that would engage with him on his own terms. Does not Christianity command, for one, the coexistence with sinners? Sullivan ends her book by suggesting that such engagement could serve as a model that would allow different members of society to converse about their religious needs. As she points out, such needs are also exhibited by the gay couple who wished to buy a wedding cake understood as a religious object.

This suggestion exemplifies Sullivan’s phenomenological approach to religion and points out both its scholarly contributions and limitations. With this approach, Sullivan aspires to trace the dialectical conceptual exchange between religion and law. While serving as an analytic tool for the understanding of these two fields, it is unclear whether this approach could also be employed, de facto, as a juridical tool. The missed opportunity to hold a dialogue with religious individuals appears evident through Sullivan’s prism, but it is unclear how this prism could enable its actual holding in court—since, as Sullivan convincingly shows, juridical language excludes such dialogue. What is more, while Sullivan makes a convincing case for historicizing the juridical treatment of religion, her approach underplays the contingencies of juridical language, which could otherwise be viewed as unsystematic. Consider, for instance, the Colorado Commission’s mentioning of the Holocaust in conjunction with an ostensible discrimination of individuals in the name of religion. One could describe the Supreme Court’s decision to reverse the Commission’s ruling as the result of this radical—and rather random—choice of rhetoric, before alluding to the deep structural and conceptual history that guides US courts.

These comments are aimed at elucidating an alternative approach to the topic; they do not mean to understate the monograph’s significant achievement and fascinating discussions. For one, the monograph’s exemplary lucidness and erudite contextualization of the topic make it approachable to readers who are neither legal scholars nor specialists of American religious history (like the author of these lines). In this way, Sullivan’s achievement will prepare the grounds for additional investigations of the juxtaposition of the Church as an abstract notion to empirical religious institutions in diverging times and places. 

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.

Coming

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