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:: By Lewis I. Rice

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Investigations ::

When laws define religion

In a Florida courtroom, a defense lawyer questioned a plaintiff about her religion. Do you belong to a synagogue? When did you last attend religious services? The lawyer asked similar questions of plaintiffs from different religious traditions, who had brought suit for the right to display, in a city cemetery, items they said held religious significance—items that broke the cemetery’s rule allowing only flat markers.

For Winnifred Fallers Sullivan, JD’76, PhD’93, a senior fellow at the Divinity School’s Martin Marty Center and a 2005–06 visiting scholar at the American Bar Foundation, who served as an expert witness for the plaintiffs, it was clear what was actually on trial: whether laws can protect religious freedom in America. Such “intrusive and offensive questions,” she writes, helped provide the answer.

“I find it quite horrifying as an American that a lawyer could ask someone in court whether they’re a good Jew,” says Sullivan, until July 2005 dean of students and senior lecturer in anthropology and sociology of religion at the Divinity School. But she understands why the questions get asked.

In The Impossibility of Religious Freedom (Princeton University Press, 2005), Sullivan taps her experience from Warner v. Boca Raton to argue that there “is no legal way of talking in the United States about the vast array of religious beliefs and practices” represented in a society that has long emphasized the individual aspect of faith—and that is home to an ever-increasing number of faith traditions. When the government tries to determine bona fide religious practices, she adds, “the result is necessarily discriminatory. To define is to exclude, and to exclude is to discriminate.”

For Sullivan, Warner offers a window into the issue. The case stemmed from the Boca Raton cemetery’s prohibition of “memorials, monuments, or enclosures” above ground. The restrictions, dating to 1961, weren’t strictly enforced, leading to a profusion of tributes to deceased relatives—statues of Mary and Jesus, Stars of David, an oak cross covered with silk lilies. In June 1997 the city council, citing safety and economic concerns, ordered that all decorations must comply with the regulations, and 11 plaintiffs filed a class-action lawsuit. The case hinged on whether the offending monuments “were substantially motivated by religious belief”—and so protected under Florida’s 1998 Religious Freedom Restoration Act (RFRA), which declares that the “government shall not substantially burden a person’s exercise of religion,” or whether they were, as the city contended, “purely personal preference.”

Sullivan backed the plaintiffs’ contention that they were motivated by religion, testifying that “practices surrounding human death, while of enormous variety, are close to the heart of religion and of the religious imagination, however it is defined. In all human societies human death is marked, ritualized, and memorialized, and those practices form a central and important part of religion.” Thus, she writes, “if what the plaintiffs in the Warner case did is not real religion, legally, then perhaps there is very little real religion in this country.”

After four days of testimony, in a decision still on appeal in August, U.S. District Judge Kenneth Ryskamp sided with the city, ruling that the plaintiffs weren’t following established “tenets, practices, or customs” of their religious beliefs. The trial, whose chronicle forms much of Sullivan’s book, was as much theological debate as legal drama—the judge preceded his ruling by noting how much he enjoyed talking theology all day in court. That’s precisely the problem, according to Sullivan: courts shouldn’t be put in position to decide the right and wrong of religious practice. In Warner, the judge determined what counts as religion based on “his largely individualistic and self-taught evangelical epistemology,” yet he did not allow for a similar individualism on the part of the plaintiffs.

Not only do laws like Florida’s RFRA fail to provide the desired protection, she argues, but they also penalize nonreligious people, whose secular motivations—no matter how worthy—are not given equal status. Instead Sullivan advocates protecting religious freedom through laws based on equality and the accommodation of differences. There is no need to protect religion specifically, she writes, because “guarantees of freedom of speech, of the press, and of association would continue to protect most of those institutions, including religious ones, usually thought necessary for a free democratic society.” Religious people and communities arguing for accommodation of their beliefs “would be required to make a very strong showing, as in race cases, of past discrimination or present need, to justify special legal treatment.”

Laws based on equality, Sullivan admits, can also raise complicated issues—for example, the legalization of gay marriage in Massachusetts. Such complications, she believes, can’t easily be avoided because democratic societies, by definition, “have to make decisions about how much room they have for people to do what is important to them.” When it comes to matters of faith, she believes, there is no escaping the personal: “Constitutionally speaking, religion is whatever an individual says it is.”