Law and Religion Studies

The Religious Studies Review has been a critical voice in the last twenty-five years—a quiet witness to the astonishing, often excellent, array of published work. Both the work and the reviews have been produced with the considerable labor of many editors and authors. Thank you and congratulations! Over this quarter century, religious studies in the United States has become a massive, sprawling project, less balkanized and with more conversation among its subfields than ever before. I will not attempt a retrospective on the whole. Instead, I will focus on what has come to be called law and religion, offering a personal account of that field. Please forgive the inevitable solipsism; others would tell the story somewhat differently. Twenty-five years ago, the academic study of what we now call law and religion was mostly considered under the rubric of church and state, thereby denominating its origins in the medieval and early modern struggles between European monarchs and the papacy. That historical genealogy had always been a poor fit in the United States, a place arguably lacking both a church and a state in that older sense, and where the actual legal story of the institutionalization of religion importantly reflects a significant break from that history. Insisting nevertheless on church and state was driven in part, I think, by an exceptionalist and reflexive anti-Catholicism, or anti-popery1 more than any real fidelity to the continuity of the structural tension present in the investiture controversy. But the recent shift to law and religion has had as its main motive more an inclusive gesture—to move beyond Europe and beyond Christianity—rather than to understand what happened to the churches in the move to the new world.2 Indeed, there has been something of a rush to leave the churches behind.3 It was also the case in the past that separation ideology and a faith in the inevitability of the modern liberal state were such dominant political and intellectual assumptions that law as a necessarily secular and statist enterprise was simply taken for granted.4 Religious law of any kind was not really considered law—but was part of the exotic worlds of the other—mostly of Jews, Muslims, and Roman Catholics. Lacking churches, most Asian religious traditions were assumed to be apolitical. Now the academic study of the intersection of law and religion aspires to be about everyone. Law and religion are mostly understood to be multiple and ubiquitous and to be always related, albeit in fascinatingly different and complex ways. We now have an opportunity to see beyond the modern secular legal settlement, even while reflexive assumptions about the proper monopoly of law by the modern state continue to persist alongside dreams of a separationism promoting enlightened, rational governance and a purified antinomian spirituality. Twenty-five years ago, I testified as an expert witness in a US federal case in Boca Raton, Florida. Warner v Boca Raton.5 The primary issue before the court was whether the actions of the plaintiffs, for which they claimed legal accommodation, were religious. Five scholars of religion testified, three for the plaintiffs and two for the defendant. Our respective fields were very different, one trained as a Christian theologian, one an expert in Jewish law, one a comparativist whose primary focus was India, one a church historian, and myself, a lawyer with a degree in the history of religions. We were brought together through the odd chance produced by this case, the first case decided under the then relatively new Florida Religious Freedom Restoration Act. We had very, very different ideas about how to approach the question before us. Which would not be surprising to any reader of the Religious Studies Review. Religious studies is not a discipline but a sprawling scrappy would-be field; it is interdisciplinary, cross-disciplinary, transdisciplinary, and curiously hitched to other conceptual categories in a gesture of "Religion and …." It is rather messy and often very interesting, but it does not lend itself to the kind of dogmatic consolidation that is useful to a court. In a footnote to his opinion in the Boca Raton case, finding that what the plaintiffs had done was not religion, but instead a matter of what he called "purely personal preference," Judge Ryskamp mentioned that he had rarely so thoroughly enjoyed a trial. He said that he had loved "talking theology all day." A rather recently minted PhD, I was righteously miffed that a federal judge would think it proper for him to be talking theology in his professional capacity. Theology should be confined to the church, I thought. For a federal judge to talk theology would violate the non-establishment clause of the US Constitution, wouldn't it? And yet, what he should be doing instead was not clear then and is no clearer today. What is the religion that is referred to in the First Amendment to the US Constitution or in various related statutes, and how should courts adjudicate when it is present? While the academic study of religion occurs virtually everywhere in the world in some form, religious studies is a largely American field of study, and it is often opaque to many of those outside the United States. That is due, in part, I believe, to the legal status of religion under US constitutional law. American religious studies presume non-establishment, non-establishment meaning that religion is entirely its own thing—separate from and unregulated by law. And non-establishment is very difficult to explain to anyone outside the US. The American independence of religion is surprising to those from outside the United States, where religion today largely inhabits a religio-legal space constructed through a partnership between a dominant religious establishment and the political governors. It is a relationship that has always had to be negotiated but is seen to be natural and necessary, even as religious diversity has grown everywhere and is increasingly accommodated. The United States, in contrast, lacks the institutions and education to handle the accommodation of a diversely religious citizenship. As an academic field of study in the United States, religious studies has flourished in the last half-century or so. Indeed, as fewer and fewer Americans think of themselves as religiously affiliated, the license taken by scholars of religion has only expanded. Increasingly un-anchored by orthodoxy of any kind, religion has proved a convenient rubric to explore what is human beyond the limited reach of the secularist enlightenment and the nature of the American project. But it remains haunted by its genealogy and is often opaque to its affordances. I have come to think that my instinct to ban theology from the courtroom was a bad one—that the reasons for Judge Ryskamp's pleasure might be worth attending to. To begin with, of course, upbraiding the judge for using the word was itself a smug and rather obnoxious move on my part. He didn't really mean anything by it. Indeed, he was enormously broadminded. He meant it. He loved talking theology—in that particularly American way—and while a conservative Presbyterian himself, he thought that Americans were entirely free to have their own opinions about religion. He admired the plaintiffs for their DIY religious gestures of mourning and grief. He felt constrained to rule against the plaintiffs because the law seemed to require it, but he did not want to. We/he need a new vocabulary to articulate our constitutional commitment to religious freedom. It is my sense that banning theology from religious studies is also a mistake for some of the same reasons. Indeed, banning theology and refusing to take religious thinkers seriously was a desperate mistake, one that was born of a kind of prejudice, a kind of whiteness. The re-inclusion of "theology" in religious studies has been a necessary move, epistemologically and ethically. We need to talk theology. We also need to talk about church. As well as the religious ideas of those who are not Christians. We need to take in work on comparative legal studies and anthropology of law. We need to mainstream the study of law in religious studies. That will include several interrelated projects. We will need to understand better the history of modern legal secularization. We also need to connect religious studies to a broader array of legal studies, historical and anthropological. There is a bit of an irony, of course, in religion rediscovering law. Consider Max Weber and Émile Durkheim. To mention just two examples. Both studied law before they studied religion. We should read their law work and their religion work together. There are many great resources that narrate law and religion together. Scholars in religious studies might start with Ernst Kantorowicz, The King's Two Bodies (1957); David and Jaruwan Engel, Tort Custom and Karma (Stanford 2010); Robert Cover, "Nomos and Narrative" Harvard Law Review 1957; Cedric Robinson, The Terms of Order and the Myths of Political Leadership (1980); Nandini Chatterjee, The Making of Indian Secularism: Empire, Law and Christianity, 1830–1960 (Cambridge 2011); Intisar H. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge, 2014); William Miller, Blood-taking and Peace-Making (Chicago 1990); and Natasha Wheatley, The Life & Death of States (Princeton 2023). There are many more. We need to be seriously inclusive about non-state law, always seeing that law is always plural, with multiple and overlapping normative legal orders coexisting in any one time and place. We need to make a habit of understanding that where there are humans—and perhaps beyond—there is always both a religion story and law story, and they are always related.