As I finish writing a book manuscript about the US Supreme Court 1988 case Lyng v. Northwest Indian Cemetery Protective Association, I am reminded of my first encounter with Kathleen Sands’s work. I was a doctoral student then, and what has since become an obsession with the Lyng case was just beginning to grow in me. I came across this case and was immediately intrigued because of the strong connections it had demonstrated between religion and land. See, in Israel/Palestine, where I grew up, religion and land are much more obviously connected than they are in the US, but the Lyng case was proving to me that things are not so different here. However, the vast legal scholarship I could find on Lyng was focused on First Amendment analyses and did not seem to care too much about the question of sacred land and its relation to private property. Kathleen Sands cared exactly about this connection, and about much more, and it wasn’t surprising that it was a religious studies scholar who has provided the most interesting reading of this case.
At the center of Lyng is an area of the Six Rivers National Forest of northwest California, known to the Yurok, Karuk, and Tolowa Indigenous nations as the High Country. The Forest Service had intended to develop the area—cut down a lot of trees and complete the paving of a road that would support the logging industry but would run right through the sacred land. The Yurok, Karuk, and Tolowa protested this development plan, arguing that it would irreparably damage their religious practice in the area, and invoking the Free Exercise Clause of the First Amendment and the American Indian Religious Freedom Act. Having won their case in two lower courts, the Yurok, Karuk, and Tolowa finally lost when the Supreme Court preferred to protect the government’s property rights in the area even if it infringes upon the free exercise rights of the three Indigenous nations.
For Sands, this means that religion and property are at odds in this and other Native American–related legal cases. As she puts it, the Native American plaintiffs could be understood to claim that “religious beliefs could transform land from private property under state sovereignty into something that could limit the sovereignty of the state and that could not be owned by anyone” (164). In other words, the Yurok, Karuk, and Tolowa were trying to transform private property into sacred land, and the Court was not going to help them to accomplish this project. Sands explains this stand taken by the Court by contextualizing the Lyng case within a longer process of secularization, that has started in seventeenth-century Europe, when religion and property were privatized at the same time (165–68).
I found Sands’s reading of Lyng inspiring and nuanced. However, it is in her chapter on religion and land in America’s Religious wars, the book that is at the center of this symposium, that she puts the matter most clearly and persuasively: whereas “when we struggle about religion, we may think we’re only fighting about worldviews,” it is “when people struggle over land [that] we realize that we’re fighting about the real world” (173).
America’s Religious Wars: The Embattled Heart of Our Public Life (Yale University Press, 2019) is a beautifully written book that brings religious studies insight into legal and political questions, about citizenship and land, about education and science, about race and sexuality. In a nutshell, what Sands argues is that public debates that seem plainly about religion are actually about competing social ethics—about freedom, equality, community, limited government, dignity, and distributive justice. The category of religion, into which we so often force these issues, is not always fitting. In fact, it is often too limited, and as Sands has argued in her article about Lyng, it “regularly dis-serves” (164) the communities she writes about in this book.
Because of the interdisciplinary nature of this work, we brought together legal scholars and humanities scholars to discuss it here, in conversation with the author. Michael McNally (Religious Studies, Carleton College) focuses his essay on America’s Religious Wars on the book’s fourth chapter, “Nicholas Black Elk and Theodor Roosevelt: Religion and the Fight for Land.” As McNally writes, there is much to admire about Sands’s argument and her clarity of vision. He also asks to push her to recognize the ways in which Native communities have used religion strategically (in other words, the category of religion does not always dis-serve them). Leslie Griffin (Law, University of Nevada) asks the opposite of Sands: to recognize that Native American land cases are about sovereignty, not about religion, and therefore, religion is a strategy that will always fail Native communities in courts. Focusing her reading of the history of religious freedom jurisprudence and legislation on three of this history’s main landmarks: Sherbert v. Verner, Employment Division v. Smith, and the Religious Freedom Restoration Act, Griffin argues that “the most important lesson of the wars of religion is that everyone must follow the same law, and that those laws must not be religion-based.”
Corey D. B. Walker (Humanities, Wake Forest University) focuses on the foundations, or beginnings, of “America’s Religious Wars.” He asks Sands to engage—alongside Edward Said, Charles Long, and Sylvia Wynter—in a process of “demythologizing religion, America, and democracy and thinking through the creation and evolution of ‘we’ across space and time.” Perhaps such demythologization is what’s needed for the American communities Sands writes about to live here together. Finally, Linda Greenhouse (Law, Yale; New York Times) reads the book’s mission thus: “to show how the religious conflicts at the embattled heart of our public life . . . transcend law and elude law’s solution.” Sands’s project is “rich and complex,” Greenhouse tells us, as she is bringing law back into the center of the story of religious freedom.
At the outset of America’s Religious Wars, Kathleen Sands presents us with a thought experiment: eavesdropping on an imaginary conversation about religion between three imaginary people sitting next to each other in the row behind us readers on an imaginary flight, we need to guess what these people’s political views are, based on their expressed views about religion. The symposium presented here in the coming weeks sits next to each other scholars of law and religion on this imaginary flight (it’s safer that way; no one can catch COVID on an imaginary flight). The result is a fascinating conversation about law, religion, and politics, and also about disciplinary boundaries and how to break them.
Thinking Religion and Democracy at the Beginnings
“The problem of beginnings is one of those problems that, if allowed to, will confront one with equal intensity on a practical and on a theoretical level” (3). The opening sentence to Edward W. Said’s classic text, Beginnings: Intention and Method, underscores the importance of thinking beginnings. That is, undertaking a critical investigation into the conditions that form and inform a moment of conception, inauguration, a starting point where one initiates a work, a thought, or a practice. Said opens the terrain of beginning to a critical probing of the practices of criticism in order to exploit the rupture that a work of criticism, or truly any work, establishes, authorizes, and legislates by way of a set of practices and ideas in creative and critical thought. In so doing, Said draws our attention to how “beginning is not only a kind of action; it is also a frame of mind, a kind of work, an attitude, a consciousness” (xv).
Edward Said’s theoretical elaboration of beginnings sheds critical light on Kathleen M. Sands’s important text America’s Religious Wars: The Embattled Heart of Our Public Life. While Said may seem to be a surprising interlocutor for a text that engages a perennial issue in American public life—the role and function of religion—his thinking facilitates a deeper grasp of the fundamental issues at stake in the text. If we are to understand conflicts over religion we must critically probe foundational conflicts that are masked by traditional formulations. Indeed, conflicts over religion are not merely family quarrels, but fundamental antagonisms which frame intellectual and institutional expressions of the beginnings of the American experiment with democracy and forms the beginnings for comprehending the complexities that continue to vex American politics and public culture. The foundational nature of this issue gives expression to a range of competing and conflicting issues from how to manage religion in an ostensibly secular society to how we understand human difference to how to adjudicate competing claims in a pluralistic polity. “Debates about religion,” as Sands correctly reminds us, “involve concrete, personal interests” (5). By delineating the practices and ideas of religion that ground these debates, Sands goes on to write, “often, when we argue about religion, we are arguing obliquely about these other things” (5). America’s Religious Wars offers readers an opportunity to think again about the beginnings of the enduring battles of religion that litter American public life. As Sands rightly points out throughout the text, religious conflicts are never simply about religion. Rather, they are, by necessity, about more than what can be contained within the limits of religion alone. The conflicts are but symptoms of deeper issues which are expressed through religion. It is this dimension of Sands’s argument that I want to highlight by unfolding a line of thinking about beginnings and pursue a fugitive discourse that remains submerged within the discourse that frames America’s Religious Wars.
What are the critical possibilities of thinking America’s Religious Wars from the beginnings? What ethical, political, social, and cultural issues and ideas emerge in such a thinking? If, as Sands writes, “freedom, equality, community, and limited government are familiar issues in American religious conflicts . . . [and] some stakes of religious conflict are more tangible than these four, and some less tangible” (7), then what are the implications of critically probing the beginnings? By stating that religious arguments are also arguments “obliquely about these other issues,” Sands draws our attention to how religious conflicts are always already conflicts beyond religion. And if this is the case, then an/other conception of the beginnings of these conflicts in the American experiment with democracy may be warranted in order to gain a critical grasp of the fundamental and foundational nature of these conflicts. In other words, the language of “contradiction,” “circularity,” and “paradox” may keep us trapped within a logic that reads Christianity as religion, as modern, as secular, and as democratic. The discursive power of Christianity and its political and secular analogues then serve to form and frame “America’s religious wars” which, in reality, may be an extended war over “a host of Euro-Christian assumptions about morality, citizenship, and civilization [which are] buried in the foundations of the social order” (11). What if the beginning of America’s Religious Wars inscribed the forces of conflict on this terrain and the manifestations of “religious” conflicts were read in and through the beginnings of an excessive power of “Euro-Christianity” and its sedimented logics in the registers of American democracy?
To begin with an excessive “Euro-Christianity” underscores how and in what ways varying forms of European Catholicism and Protestantism have foundationally and fundamentally informed the American experiment with democracy. It is not incidental that “when the American republic was founded, however, most human beings under its jurisdiction had neither the protection of wall religion nor the power to alter the country’s foundations” (85). The polity was constituted as such with a distinctive idea of what it means to be human and a citizen developed in very distinctive and particular ways. Indeed, in his challenging text Shades of Freedom: Racial Politics and Presumptions of the American Legal Process, late jurist A. Leon Higginbotham Jr. gives critical expression to the scale and scope of the cultural, legal, and political assumptions which prescribe and shape the very discourse of citizenship and the contours of freedom. “Euro-Christianity” thus proffers a cultural and political vocabulary that makes legible and legitimate such conceptualizations that define and delimit the range and scope of “We the people” and that shape authorized discourses of religion and rights. The “gap” which Sands writes about and teleologically sutures to a corrective civil war theoretically short circuits the foundational logic that forms and animates historiographical and juridical discourses on religion and its public role. Beginning with the constitution of the Man of the demos as reflective of a distinct conception of the human that properly pertains to the category of religion yields not so much a conflict over religion but rather what type of human and what type of citizen can properly occupy the space of the public and the political in a democratic society. The foundation and the wall thus are part of the political house of democracy whose architect and resident, the human, enters the public sphere with distinctive traits, abilities, and responsibilities co-extensive with the excessive logic of “Euro-Christianity.” “Euro-Christianity” is not, and never has been, absolutely about religion. Rather as a concept, framework, and, most importantly, worldview, it provides the language and categories for conceptualizing the world and being human in the world. Not simply a question of “over-civilization,” “under-civilization,” or civilization, “Euro-Christianity” is excessive in the ways in which it organizes and authorizes forms of knowledge, regimes of power, and modes of existence in the world (276). It frames transcendence—sacred and secular—while giving meaning and expression to temporality, spatiality, and existence. It is overdetermined by its imbrication into the ideas, logics, and practices of democracy. What are the implications—theoretically and practically—of alternative beginnings which unfold “Euro-Christianity” as root, cause, and medium in and through which the density and diversity of discourses that have been and continue to be consolidated within the discourse of conflicts of “religion”? What extraordinary intellectual and political opportunities are available for conceptualizing religion in American public life across space and time by thinking through such beginnings?
To think beginnings with America’s Religious Wars is to raise to a level of critical thought the logic that sutures such binaries as Christianity and indigeneity, creation and evolution, religion and science, and sacred and secular. The theoretical, juridical, political, and cultural expressions are rooted in an exemplary beginning of “Euro-Christianity” which drives the epistemological and ontological dimensions of the conflicts about religion in American public life. More importantly, it also provides the critical axes and pivots for normative judgments on the place, privilege, and position of religion in American public life and culture. Rethinking the perennial conflicts of religion in American life and culture from new beginnings reveals the always already conflicts over the meaning, substance, value, and knowledge of the human—as the work of Charles H. Long and Sylvia Wynter have brilliantly elaborated—that remains latent in traditional discourses about these debates. “American conflicts about religion,” Sands writes, “though often phrased in terms of walls, always come down to questions about how we should live together” (284). The open question may form the beginnings of a new critical history and analysis of religion in American public life. It is a process of demythologizing religion, America, and democracy and thinking through the creation and evolution of “we” across space and time. In this way, the space and knowledge of law, politics, and society are vehicles for comprehending and deconstructing discourses of conflicts of religion as foundational conflicts over competing claims of sovereignty in a democratic society.
Said reminds us that “a beginning intends meaning, but the continuities and methods developing from it are generally orders of dispersion, of adjacency, and of complementarity . . . the beginning encourages (especially the modern beginning), nonlinear development, a logic giving rise of [a] sort of multileveled coherence of dispersion” (373). The opportunity represented by beginnings is not one which yields a logic of the same. Rather, the beginning represents a rupture theoretically, methodologically, and politically with the dominant regimes of knowledge and power. An/other order of knowledge pertains to beginnings; one that is not preoccupied with origins, but rather one that is concerned with thinking sedimented discourses along with the logics and commonsense concepts and frameworks which order and govern the everyday. The discourse submerged within the narrative logic of the history that structures America’s Religious Wars presents an opportunity to think again the beginnings of religion in American public life and the antagonisms which constitute religion, democracy, and America.
Conflicts over religion animate the dominant narratives and conceptual formulas of American politics and public life. Yet, with Sands, we readily recognize that the disputes over religion are always already displaced disputes involving foundational and fundamental issues that in/form our collective life. What would it mean to subject this dominant narrative to a critical thinking of beginnings? For instance, what theoretical possibilities are available when Sands discusses the “explicitly racist logic” in Reynolds v. United States and this scene is reterritorialized to the space of beginnings to recognize that this logic is constitutive of the afterlives of the knowledges, institutions, and practices of slavery and settler colonialism which organize the epistemes of religion, civilization, and the human (279)? Two decades ago at the third Parliament of World Religions in Cape Town, South Africa, a group of Native American leaders offered “the seldom-heard Indian side of the story about America’s much-vaunted religious freedom,” as it is described by Phil Couisineau (xiv). In a session titled “America’s Shadow Struggle,” these leaders shared alternative experiences and understandings of religious freedom beyond the legitimate discourse of religious freedom. By reframing the discourse of religious freedom to focus on their extensive history and experience, these leaders instantiated a thinking of beginnings that resists the protocols of the discourse of religious freedom. In so doing, they unveil the constitutive failure of the concept of religious freedom to adequately represent multiple human experiences in a pluralistic polity.
These Native leaders remind us that our commonplace understanding of religious freedom which underwrites religious conflict in American public life is insufficient in light of America’s complex and contested history. Indeed, the ways in which we conceive of religious freedom are organically linked to how we understand what it means to be a citizen, what it means to live in a democracy and, ultimately, what it means to be human. The example of these Native leaders more than two decades ago reminds us that indigenous as well as enslaved and other marginalized people, cultures, knowledges and ideas often frustrate and disrupt any nice and neat understandings of religious freedom let alone the role and function of religion in society. Whether we begin with the “golden age” of the founding of religious freedom in adjudicating competing visions of the public role of religion in the time of the early republic or engage contemporary clashes over the proper place and position of religion in American public life, the problem of beginnings is vital for understanding how we mobilize a range of social, cultural, and political ideas for our society and world.
America’s Religious Wars astutely reminds us that religion in America is more than a series of binary opposites—religious and secular, theism and atheism, tradition and innovation. It also does not fit a simplistic either/or framework. Yet, to truly understand the work of religion in our theoretical and political imaginations and institutions requires a critical thinking of the beginnings of how we formulate and conceptualize these “conflicts” in surfacing the deeper understandings which result from a plurality of historical and conceptual models. By taking beginnings as an object of thought—such as how the cultures of segregation are constituted, policed, and maintained in and through discourses of religious conflict—we can critically confront what is captured and contained by the conventional categories that have authorized, governed, and policed institutionally and juridically limited notions of religion. In this manner, Kathleen Sands presciently concludes, “that America is morally unmoored is no news to many victims of our history. They know that troubles like those recounted here do indeed go to the ‘heart of the existing order’” (284).
Perhaps, the end is the beginning.
Thinking about the Wars of Religion
At the beginning of her Yale University Press book, Wars of Religion: The Embattled Heart of American Public Life, Professor Kathleen Sands describes precisely the aim of her work: “The goal of this book is not to resolve American disagreements about religion but to help us travel better in our shared political system.” The First Amendment’s Religion Clauses were a critical reaction to the wars of religion. Because of that history, I travel differently than Professor Sands in our legal and not-very-shared political system.
I am a scholar of law and religion. I have a Ph.D. in religious studies and have been a theology professor. Then I went to law school and now combine the two fields. The claims of one subject always make me aware of the needs of the other.
Three parts of law and religion history are central to my analysis. First is Sherbert v. Verner, a 1963 Supreme Court case, which ruled that South Carolina could not refuse unemployment compensation benefits to a Seventh-Day Adventist because she would not work on Saturdays. Sherbert required the government to have a compelling state interest in order to burden religion.
Second is Employment Division v. Smith, a 1990 Supreme Court case that ruled Native Americans were not entitled to a religious exemption from the drug laws. Instead, they could be denied unemployment benefits because of their use of peyote in a religious ritual. Smith ruled everyone has to follow neutral laws of general applicability.
Third is the Religious Freedom Restoration Act, RFRA, a federal and often-state statute. The RFRAs rejected Smith and restored the compelling state interest test of Sherbert. The RFRAs are statutes, so Smith still states what the First Amendment means … today. But opponents of Smith regularly call for Smith’s overruling. They have come close to overruling it, but today it remains the law of free exercise.
Professor Sands is with many religion writers who dislike Smith, and thus prefer Sherbert and the RFRAs. In contrast, I like Smith and dislike Sherbert and RFRA. In my opinion, Smith protects us from too many religious exemptions while Sherbert and the RFRAs provide too many of them. Part of my complaint is with the compelling state interest standard, which allows religious exemptions many times, or at least allows them to popular religions, often giving them the right to violate the civil rights of their fellow citizens.
To me, the most important lesson of the wars of religion is that everyone must follow the same law, and that those laws must not be religion-based. Sands points out the confusion over the use of the word “secular” to describe positions like mine. I replace the word secular with legal-based. Laws should be legal-based, not religion-based. If laws are religion-based, it means they are different for different religions, or for religions and no religions. That means we do not have the equal, non-religious system that the Establishment Clause is supposed to guarantee. The reason for this is that religions are not always good, as Professor Sands accepts, and are never universal, which is something many pro-religion advocates do not want to hear. Many other debates, about property, sovereignty, and sex, may have been going on in the disputes Professor Sands describes, but religious differences were always part of them. Religions keep most people from finding common ground because they always disagree about what their religions hold.
Consider the facts of the cases and how I look at them. Sherbert lost her case because the Supreme Court had already ruled in 1961 that Sunday closing laws did not violate the First Amendment. That Sunday ruling was wrong. It should have been obvious that picking one religion’s Sabbath over another’s as the day of rest would lead to religious and economic problems. With the choice of Sunday as an official rest day, Christians were clearly favored over Jews, Seventh-Day Adventists, and any others who did not favor Sunday. If the Court had ruled correctly about the Sunday closings, it would not have needed a compelling state interest rule for Sherbert. Instead, if the law had respected everyone’s different Sabbath or non-Sabbath, everyone, even Sherbert, could have gotten unemployment benefits—or not even needed them–without any special protection for religion.
Smith has a similar outcome. Native Americans usually lose their religion cases in the Supreme Court, while Christians win them. I am not as troubled by Smith, because in general I oppose much drug or alcohol use, even in religious settings. For health reasons, not religious ones. The interesting background to Smith is that while the 18th Amendment, which barred liquor, was in effect, the connected laws protected the use of alcohol in Catholic Masses and in other religious settings. This is really the same point as I made about Sherbert. If the laws are supposed to be for everyone, then everyone must be treated the same way by them. That is what happened to peyote. Post-Smith, many governments by statute exempted peyote use from their criminal laws. Smith allows the governments to make such exemptions. In my view, the exemptions should be equally for everyone or for no one. Smith sets up a standard where the laws apply equally to all, as long as the government listens to everyone and sets up an equal standard that applies to all.
The government over-listened by legislating RFRA. RFRAs have undermined many civil rights, allowing religion to win while the civil rights lose. Many people argue that religion was the source of the civil rights movement. But it was also slaves who wanted their freedom who opposed the long religious, including Christian, support of slavery. The wars of religion did not support human freedom, and that is why the First Amendment was set up to oppose religious government. Scholars have recently emphasized the church’s constant role in supporting slavery and segregation.
Everyone should be required to obey the health laws, which serve everyone’s health. Nonetheless, RFRA, by a 5-4 vote in the Supreme Court, allowed religious, and now moral, opponents of contraception to prohibit their employees from getting contraceptive insurance, even though the Affordable Care Act was supposed to provide insurance to everyone.
The more religion grows, the fewer health and civil rights people have. President Trump expanded the contraceptive religious exemptions so that many more employers do not have to provide contraceptive insurance and do not have to give notice of their decision to anyone.
FYI, all the employers lost their contraceptive Free Exercise cases in the courts because Smith says everyone has to obey the law. RFRA undermined the same rule of law for everyone.
Smith is weakening, because religious people want to follow their own laws instead of the laws of the states and the United States. Masterpiece Cakeshop allowed a baker to discriminate against LGBTs on religious grounds. The baker refused the couple a cake because he opposed same-sex marriage. The Court ridiculously concluded that the Colorado government had discriminated against religion by considering ways that religions have harmed people in the past. That was viewed as discrimination instead of honesty.
That is a major problem with our religion-based laws and exemptions. They like to pretend that religion is always good, and that any negative criticism of religion shows First Amendment hostility to religion. Ruling that criticism of religion is a Free Exercise violation shows us that too many people have forgotten about the wars of religion, which are the foundation of the First Amendment. In my view, the wars are the foundation, not all the good things about religion. Religions have done and continue to do many harms to people, and any interpretation of the First Amendment has to start with that recognition. That is why we have an Establishment Clause.
Smith survived as the law of the First Amendment in Fulton v. City of Philadelphia. But it was not a good result. The Court unanimously ruled that Philadelphia had to work with Catholic Social Services even though CSS would not give foster children to LGBTQ individuals, a decision that violates the antidiscrimination laws of Philadelphia. This case is about religion. When religion rules the law, individuals lose their civil rights, as women did in the contraception cases and LGBTQs did in Fulton.
Many people do not want to acknowledge the history of the wars of religion, where religions battled to be ruled by their own religions and no one else’s. Religion may have been only part of the controversy, as Professor Sands explains, but it was an important part of it. Religions still play the same role today. The First Amendment was supposed to deliver us from that kind of legal system. Instead, today’s religions are winning many battles across the country; their victories expanded in the Trump administration. Indeed, religion now predicts how many people vote. Religious freedom exemptions now allow:
- discrimination against LGBTQs;
- discrimination against women;
- freedom of religious organizations from any obedience to all our employment discrimination laws for their “ministers”; and
- refusal of health care.
In contrast to this system, I prefer to stick with Smith, insisting that everyone must obey the antidiscrimination, health and other laws so that everyone is equally served. I am not with the Court’s latest interpretation of Smith on this, as I think Fulton was wrong in its anti-LGBTQ result.
Professor Sands makes many important points about the rights of Native Americans. My own view is that the land cases, which they lose under the Religion Clauses, should be treated as sovereignty cases and not as religious freedom cases. Sovereignty cases should recognize the long and difficult history of Native Americans in their own country. They were beaten out of their rights. Calling them religious freedom cases does not really reflect what is happening in the cases or how Native Americans should be justly treated.
I am grateful to Professor Sands for all the interesting points raised in her book. As always, I want to emphasize my view that religion should not provide exemptions from the laws that protect everyone. Instead, I think that everyone should obey neutral laws of general applicability.
Engaging with Kathleen Sands and America’s Religious Wars
Reynolds v. United States is a famous Supreme Court case, an 1878 decision that rejected a religious defense against prosecution for the federal crime of polygamy. It was the court’s first interpretation of the First Amendment’s Free Exercise Clause. The free exercise claim lost unanimously. Reading Kathleen Sands’s account of the case, I realized I had never actually read Chief Justice Morrison Waite’s opinion. So I looked it up, not knowing quite what to expect.
Of course, some of the opinion’s language is a bit cringe-inducing; the defendant, George Reynolds, was a member of the Church of Jesus Christ of Latter-day Saints, and Mormons had few friends in high places in 1878. It’s no accident that the justices had gone nearly a century without feeling obliged to analyze the Free Exercise Clause; mainstream religion, secure in its political and social dominance, had no need to turn to the courts. It required an assertive religious minority (think of the Jehovah’s Witnesses and their landmark litigation in the mid-twentieth century) to take up the free exercise sword.
Reynolds’s argument was that his prosecution violated his right to free exercise because in taking a second wife, he was carrying out a duty that his church imposed on male Mormons; the penalty for violating the plural marriage command, he informed the court, was eternal damnation. The court questioned neither Reynolds’s description of his religious obligation nor his view of the peril awaiting him if he obeyed secular law. Rather, the justices treated those factors as irrelevant. While the First Amendment entitled Reynolds to his beliefs, the chief justice wrote, the question in the case wasn’t belief but practice: “whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land” (162). Waite continued: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances” (167).
Reading these words, I had two reactions. One was to admire their straightforward simplicity: wouldn’t it be great if Reynolds could be summoned from history to provide the answer to the baker who claims that his religion forbids him to bake a cake for a customer’s same-sex wedding, or to the employer who insists that providing the required contraception coverage in his employee health plan would make him complicit in his employees’ sin of engaging in non-procreative sex.
But my second reaction was: Wait a minute, Reynolds is still our law. Justice Antonin Scalia relied on it in his majority opinion in Employment Division v. Smith (as the case is generally known, not “Oregon v. Smith” as this book calls it) in 1990, even to the extent of quoting Chief Justice Waite’s warning against permitting “every citizen to become a law unto himself” (879). And yet the Supreme Court’s clear injunction against religious opt-outs from laws of general applicability has brought us neither legal clarity nor social peace. What happened?
I take this book’s mission in large part to be to offer an answer to that question: to show how the religious conflicts at “the embattled heart of our public life,” to quote the subtitle, transcend law and elude law’s solution. The question is deceptively simple, and the answer Kathleen Sands gives us is rich and complex, if not fully satisfying.
The tension inherent in the two religion clauses is obvious to anyone who writes or even thinks about religion in a constitutional register. My own work in this area has been almost exclusively law-focused. In The Burger Court and the Rise of the Judicial Right (2016) Michael J. Graetz and I chronicled the Supreme Court’s increasing emphasis on accommodation and its shrinking concern with neutrality—Free Exercise over Establishment—and described the tension this way: “Establishment Clause cases ask whether the government has gone too far to accommodate religion. Free Exercise Clause cases ask the opposite: whether the government has gone far enough” (227).
It’s a primary strength of America’s Religious Wars to get beyond law-talk and show us how the tension has played out throughout American history, intersecting only occasionally with courts and law. This is an important and enlightening perspective. It enables the author to draw this pithy lesson from George Washington’s confrontation with Quaker pacifism: “What the religious believer most needs from government is exactly what the government can least afford to provide” (62).
And her description of “religion” as an empty vessel to be filled by politicians proved prescient nearly as soon as the book was published. How much of a leap is it, really, from President Eisenhower’s assertion in 1952 that “our form of government has no sense unless it is founded in a deeply felt religious faith—and I don’t care what it is” to Donald Trump’s appropriation of the steps of St. John’s Episcopal Church on which to raise a Bible in the air as a fisherman might show off a prize catch? The “religion” flaunted in an empty gesture to fire up the political base—or, in Eisenhower’s case, to claim American superiority to “godless” Communism—is religion stripped of meaning, a politician’s cheap prize. As Sands notes: “Far from denoting a liberty that is equally available to all, ‘religious freedom’ has become a code for opposition to laws that protect the equality of women and LGBT people, just as it once served as a code for white Christian opposition to school desegregation” (282).
This insight might well have led to a richer concluding chapter. “Religious” and “freedom” are, of course, the first words in the title of the Religious Freedom Restoration Act (RFRA), which Congress passed in 1993 to repudiate Employment Division v. Smith. Sands’s discussion of RFRA reads almost as an afterthought. But I view this statute—what led to it and what has become of it—as central to the current story of religion in America—a logical if not inevitable capstone to her narrative.
In considering the provocatively titled Religious Freedom Restoration Act, we have to wonder why Congress, by a unanimous vote in the House of Representatives and a vote of 97 to 3 in the Senate, deemed religious freedom to be in need of restoration. What had been taken away, and what was being restored?
As I discussed, Employment Division v. Smith was a reiteration—in its key passage, a literal one—of Reynolds. Two members of the Native American Church (only one of whom was Native American) who worked as counselors at a private drug rehabilitation agency were fired for using the illegal hallucinogen peyote in a sacramental ceremony. Their dismissal for “misconduct” rendered them ineligible for Oregon unemployment benefits. They sued the state, claiming a religion-based exemption from their disqualification. The parallel with Reynolds was obvious and the result was the same. Yet the decision was denounced across the entire ideological spectrum, secular and religious, from the most liberal to the most conservative. What accounted for the uproar?
In the long run of free exercise cases from Reynolds to Employment Division, the Supreme Court had only twice granted a religious exemption from a generally applicable law. The first was Sherbert v. Verner in 1963, in which the court deemed a Seventh-Day Adventist eligible for unemployment benefits after she was fired for refusing to work on Saturday. In constitutional terms, the court applied a strict-scrutiny test, meaning that the government was required to show a “compelling” reason for a law or policy that placed a burden on religious exercise. South Carolina in this case justified its refusal to accommodate Sabbath observers by the need to deter fraudulent claims by workers who just wanted to avoid weekend duty. This was not a sufficiently compelling reason, the court held.
The second, nine years later, was Wisconsin v. Yoder, a problematic decision that gave Amish parents a religious excuse to take their children out of school before the state minimum age of sixteen. Chief Justice Warren Burger’s majority opinion was an odd paean to the Amish way of life, “productive and very law-abiding” (222). Only Justice William O. Douglas, in dissent, spoke up for the children who had no say in whether they wanted to be deprived of a high school education.
And that was it: two cases. Between Wisconsin v. Yoder in 1972 and Employment Division in 1990, the court decided numerous free exercise cases against the religious claimants: Muslims, Orthodox Jews, Evangelical Christians, and Native Americans. In her highly compressed account of this trajectory, Sands seems to suggest that the justices were singling out Native Americans for particular disfavor, but I don’t believe that was the case. The court was simply returning to the path that George Washington put the country on and that Reynolds constitutionalized: while everyone is entitled to their beliefs, everyone is obliged to follow the community’s laws. (A book published this summer by Oxford University Press, The Religion Clauses: The Case for Separating Church and State, by Erwin Chemerinsky and Howard Gillman, provides a particularly useful account of these cases.)
So the Religious Freedom Restoration Act can’t actually be seen as a restoration. It is better understood as a political document, a statement issued by a temporary and highly unstable coalition of interest groups drawn to the cause for individual and ultimately clashing reasons. Conservative Christians were—and still are—smarting from the 1983 decision in Bob Jones University v. United States, which upheld stripping a racially discriminatory religious school of its federal tax-exempt status. Observant Jews were offended by Goldman v. Weinberger, a 1986 decision, promptly overturned by Congress, holding that a Jewish Air Force officer was not entitled to wear a yarmulke while on duty. Political liberals saw Employment Division as a worrisome testament to Justice Scalia’s rising influence and, focusing on the particular facts of the case, wanted to protect minority faiths.
In enacting RFRA, Congress wrote the Sherbert v. Verner compelling-interest test into statutory law. The act provides: “Government shall not burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless] it demonstrates that application of the burden . . . (1) furthers a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.”
Four years later the Supreme Court ruled on federalism grounds that Congress lacked the authority to make RFRA binding on the states (City of Boerne v. Flores). Many states passed their own “little RFRAs.” The Supreme Court has developed a robust RFRA jurisprudence as applied to the federal government. Crucially, the court insists that judges are not to question a religious claimant’s sincerity or the factual basis for a religious belief. For example, the owner of Hobby Lobby Stores, a closely held for-profit corporation with more than one thousand employees, claimed that his religious beliefs about conception meant that he could not subsidize the availability to his employees of birth-control methods he regarded as “abortifacients.” The methods to which he objected actually prevent conception and thus don’t cause abortion, but no matter; in ruling for the business owner in Burwell v. Hobby Lobby Stores (2014) the court credited the sincerity of his belief, and that’s all that counted.
As a result of that decision and the court’s follow-up decision this summer in Little Sisters of the Poor v. Pennsylvania, thousands of women have been deprived of a health benefit to which federal law entitles them. This is surely not the vision of RFRA that liberals entertained when they supported a law they thought would protect minority faiths from suppression by the majority. RFRA has metastasized to mirror the Christian community’s sense of grievance and marginalization in the face of evolving social norms that run counter to old doctrine.
America’s Religious Wars teaches that little about this development should surprise us. We fight religious wars not just because we have different beliefs; if it were that simple, arranging a truce would be easy. As Kathleen Sands demonstrates, the combatants have fought these wars from a desire to project their beliefs onto the larger fabric of society and to shape society in their image. Law can’t save us from ourselves; it is one more weapon in our hands.
What Religious Freedom Can Mean
“Despite our well-practiced scripts on the subject, Americans hardly know what they’re talking about when we’re fighting over religion,” writes Kathleen Sands in America’s Religious Wars: The Embattled Heart of our Public Life (17). There is so much to admire about this argument and this book. Sands ably walks us through various American battles over “religious freedom” to show, refreshingly and persuasively, that public debates that seem plainly about religion and religious freedom are at a deeper level about competing social ethics—about freedom, equality, community, limited government, dignity, and distributive justice—that can become lost when they are squeezed into an increasingly slippery category of religion. These deeper disagreements are worth voicing, since they are the “living heart” and “fuel” of democracy. Sands aims in her ambitious book to help clarify—demystify even—the workings of religion and its indeterminacy in the playing out of these deeper disagreements. “To understand American religion-talk,” in other words, “we must look at, rather than through, the judgments we normally pack into the word “religion” (13).
“In order to enforce laws guaranteeing religious freedom,” Winnifred Fallers Sullivan memorably writes, “you must first have religion” (1). Sands joins Sullivan, Elizabeth Shakman Hurd, Saba Mahmood, Finbarr Curtis, Tisa Wenger, and others making better sense of the confusing din over religious freedom in courts of law and public opinion by denaturalizing the category of religion, exposing its indeterminacies, and unmasking the uses of religious freedom discourse for those with power over those with less power. As Sands puts it, “the truth is that the category of religion, not having been created for intellectual reasons, does not make intellectual sense” (41).
Sands writes with a clarity of vision that few scholars making sense of these confusing issues can claim. Goodness knows I struggle to find that clarity either in my teaching on religion and American public life or my writing on Native American sacred claims in the law. Especially helpful is her recurring motif that we tend to speak of religion in two contrasting ways—in terms of walls and foundation. When religion as wall is in play, religion is conceived as the privatized, interiorized religion or spirituality that everyone can (or even does) have but that can be walled off from public life. But religion is also often spoken of as a foundation (following Rousseau and Durkheim) that holds our polity or society together through its shared mythos and ethos.
I will eagerly draw in my teaching on the initial framing chapters for the lucid way Sands tells the stories of the genealogies of religion and distills the issues as they become baked into the Constitution. The body chapters range effectively and provocatively for a broad audience. They engage conflicts among religions, first with Catholics and Mormons and then with Native Americans, and between the religious and secular, with an eye toward science and sexuality.
I’ll focus here on the material I know best, her chapter “Religion and the Fight for Land” on Native American traditions. Kudos to Sands for placing Native American religious freedom at the center of a broader inquiry into America’s religious wars. It belongs at the center: three key decisions by which the Rehnquist Court redrew the lines of judicial interpretation of the First Amendment’s Free Exercise Clause generally involved Native American religious claims: Employment Div. v. Smith (1990) but also Bowen v. Roy (1986) and Lyng v. Northwest Indian Cemetery Protective Ass’n (1988), which reversed a Ninth Circuit decision holding otherwise to rule that Native Americans had no First Amendment right to sacred land protection.
Native American cases also belong at the center because conflicts over land in American settler colonialism are ultimately conflicts over religion in its foundational sense. To illustrate, Sands turns our attention to the Black Hills, considered by Black Elk and other Lakota people to be profoundly holy, “the heart of everything that is,” but also the place American pilgrims flock to in order to gaze at Mount Rushmore. Through the contrasting religious biographies of Roosevelt and Black Elk in relationship to the taking of the Black Hills, the Ghost Dance, and the criminalization of Native ceremonial traditions under the Interior Department’s administrative law, Sands ably shows how “struggles over land are not just about property and power” but also about religion (136). This is predictable in the case of Black Elk: Native American traditions, insofar as they turn on relationships and collective obligations towards land, have hardly been legible in terms of the category of religion. But the point is also illustrated by Roosevelt’s story. Roosevelt was a strict separationist on “religion” conceived in terms of walls, but the Rough Rider president was insistent that the lands that comprised the nation’s newly gained territory were the ground and foundation of his de facto religion, Americanism. If you’ve ever wondered what business Roosevelt has joining Lincoln, Jefferson, and Washington on Mt. Rushmore, Sands makes it all too clear, and she puts before us the remarkable fact that the mountain the sculptor Borglum set his dynamite charges into was the very place where Black Elk’s famous vision took him as a child. When it comes to settler colonialism, ironies abound, often taking religious shape.
This chapter feels especially salient as I write these words days after Trump declared, with Rushmore as his July 4 backdrop, that “I am here as your president to proclaim before the country and before the world, this monument will never be desecrated.” Equipped with Sands’s insight, we know this cannot be chalked up to Trump’s own vagaries. Its utterly unexceptional, keyed into an American narrative that is, as Sands would put it, foundational.
Still, it seems to me there may be some missed opportunities in this chapter. I kept seeing the possibilities if Sands had been in further conversation with Tisa Wenger’s two books, both of which are spot on in terms of the concerns of this chapter. Wenger’s We Have a Religion (2009) does a deep dive into the complexities of the Civilization Regulations in the Pueblo Dance Controversies of the 1920s and her more recent book, Religious Freedom: The Contested History of an American Ideal (2017), dedicates a rich chapter to the discussion of the assemblage of civilization, race, and religion in the Civilization Regulations.
It is important that Sands does bring the Civilization Regulations to our attention. Between 1883 and 1934, the US Interior Department established Courts of Indian Offenses and drew up administrative law criminalizing specific practices: the Sun Dance, potlatches, and practices of medicine men. The regulations also gave federal agents broad authority to curtail most any other practice they deemed inimical to “civilization.” Theodore Roosevelt was president when, in 1904, his interior secretary issued the third and most elaborate of the regulations specifying punishments for each offense. Sands does make clear that Interior officials did not see themselves as outlawing Native religions in the Civilization Regulations; they didn’t recognize these ways as religion at all.
But if Sands were in conversation with Wenger, we would have learned that the indeterminacies of religion were amply shown in the capillary actions of the regulations’ enforcement. Some Native leaders played down the religious nature of dances and practices, insisting, for example, that certain dances were merely social. But Native leaders also consciously and strategically drew on the discourse of religion to protect their ways.
Attending more fully to this part of the story, we may have learned that the Ghost Dancers about whom Sands writes, including Black Elk for a time, were not just on the receiving end of the weaponization of religion as a category. They would pop off the page for the way they, too, strategically engaged the language of religious freedom to protect their own traditions. We might have learned that Sands’s main source about the Ghost Dance, James Mooney, was a government-paid anthropologist who undertook his study of the Ghost Dance in part to render it legible as religion. A dissertation and forthcoming book by Tiffany Hale, Fugitive Religion: The Ghost Dance and the Racial State, updates our appreciation of practitioners of the Ghost Dance even further.
To be sure, Sands’s book is ambitious and as Trump’s speech at Mt. Rushmore shows, it’s important she included the Native material in the first place. The missed opportunity is that this chapter could do even more to flesh out the book’s central and unifying concern, the workings of religious indeterminacy and its uses for those with power. The very slipperiness that enabled Protestant Establishment leaders to use religious freedom to assert power over Catholics, Mormons, and Native Americans also enabled Catholics, Mormons, and Native peoples to draw on it to lay claim to their own excluded practices as religion.
Ghost Dancers were hardly the only Native people to engage the discourse of religious freedom. Wenger points to practitioners of nation-specific traditions like the Red Lake Ojibwe Midewiwin ceremony and Pueblo seasonal dance ceremonies, as well as to members of new religious movements like the Shaker Church and Peyotism. Wenger and historian Thomas Maroukis detail just how enterprising were efforts by Native practitioners of the Peyote Road to engage religious freedom talk to win allies and to keep federal officials off their backs, all at a time when mounting sentiment toward prohibition was ramping up enforcement of the Civilization Regulations. Ultimately, Peyotists took to incorporating themselves as the Native American Church, first in Oklahoma in 1918. The details of their relative success along the way go unnoticed in Sands’s analysis, though importantly she shows how fragile were Peyotists’ gains, since they were negated by the Supreme Court in its 1990 Smith decision.
For Wenger, the appeal by Peyotists and others to religious freedom in their effort to be legible and legitimate meant that Native traditions necessarily changed in the doing (and implicitly that those changes were matters more of coercion than consent). If I’m reading Sands correctly, something similar is in play in her account; Native appeals to religion are destined ultimately to fail because the terms are set by dominant culture and because the real issues never were simply about religion. “Religion in the constitutional sense,” she writes, “does not adequately convey what Native people have lost, nor does “religious freedom” name what it would take to restore meaningful sovereignty to First Nations on tribal lands” (176–77).
I agree with Sands here wholeheartedly. But important, too, is the agency of Native peoples to resourcefully engage religion from below, and in ways that are not destined to result in tragic failures, or to remain locked in those failures. At the end of her chapter, Sands alludes to Native people persuading Congress to pass laws involving repatriation of sacred objects and ancestral remains and restoring the legality of sacramental peyote use by Native people (199). I think it’s worth amplifying this part of the story because it points to the rhetorical power of religion and strategic Native efforts to leverage that power to persuade Congress to pass Native specific statutory protections. In the case of Peyote, Native advocates secured protections in 1994 through an amendment to the American Indian Religious Freedom Act. Originally passed in 1978, AIRFA is often dismissed as lacking legal teeth, especially to protect sacred lands, and this was one of the conclusions of the Supreme Court in Lyng. But Native advocates knew well that they couldn’t succeed in getting AIRFA through Congress if it had the legal teeth they ultimately wanted—specifically a “cause of action” provision that would equip them to bring claims for sacred lands to court—because it opposed by powerful members of Congress from western states, including South Dakota. They nonetheless stuck with AIRFA as it was—an acknowledgment of federal policies abridging Native religious freedom intentionally or unintentionally, and calling on federal agencies to “preserve and protect” Native religions through accommodations in their agency decision-making. So AIRFA was less a destined-to-fail appeal to religious freedom than it was a law extending the formal government-to-government relationship between the U.S. and the tribes to the realm of religion and culture.
It is significant that Native advocates looked to amend AIRFA, not the Religious Freedom Restoration Act (1993), to restore Native American rights to sacramental peyote after the Supreme Court’s criminalization of the religion of tens of thousands of Peyotists, even though RFRA had been passed to address the vagaries of the Smith decision in the first place.
My point is that while Native peoples have consistently gotten the short stick when it comes to what counts as religion, it’s important to acknowledge that Native advocates got busy, drew on the rhetorical power of religious freedom discourse to win allies in Congress, but ultimately turned to the legal structures of federal Indian law, based on treaties and tribal sovereignty, rather than on religious freedom law. Put another way, because of these activists’ strategic wisdom, current legal recognition of the religiousness of the Peyote religion conforms less to the logic of individual religion than to the logic of Native collective sovereignty.
This is one example among others of how the story of Native American religious freedom may not simply be the story of its failure in Lyng and Smith and as exhibit A in the impossibility of religious freedom generally, but very much the story of how Native people have drawn on the rhetorical power of religious freedom resourcefully—creatively even—to protect what’s sacred to them.
Like Black Elk, Native leaders today engage the discourse of religion to their own ends. How much they can do with it in the end is quite limited; religious freedom claims have not yet been successful in winning back lands, much less protecting sacred places on public lands.
But it’s crucial to understanding how such discourses function to take seriously how they are resisted and appropriated from below. I’d note here that members of the coalition that worked toward AIRFA and the repatriation law, like Suzan Shown Harjo, helped persuaded the Board of Geographic Names in 2016 to rename Harney Peak, formally associated with a cavalry officer linked to the violent theft of the Black Hills, as Black Elk Peak.
This point is being played out in the courts today, but not in the language of religious freedom, because Native activists have never put all their money on religious freedom arguments, especially on sacred lands after Lyng. At the time of this writing, we still await a federal judge’s decision on the status of Bears Ears National Monument in Utah, specifically whether President Trump had the executive authority to gut it by 85 percent under the American Antiquities Act of 1906, the legislation Teddy Roosevelt championed that authorizes presidents to set aside lands as national monuments.
Sands rightly points out that Roosevelt’s conservation initiatives created parks and monuments that effectively erased Indigenous presence and “enabled the symbolic ingestion of Native cultures” (168). But Bears Ears is aptly called the first Native American national monument because when President Obama designated 1.35 million acres of traditional lands and places sacred to the Navajo, Ute, Ute Mountain Ute, Hopi and Zuni peoples, he largely adopted the plan put forward by an intertribal coalition to protect particular sacred places but also broader landscapes of ancestral presence and traditional knowledge, knowledge that inheres in the land and that is itself identified as the national treasure of monumental value. It follows that the monument designation involved collaborative management with that intertribal coalition, until President Trump issued an executive order a year later eviscerating the monument by 85 percent of land, later putting opened-up lands to auction for uranium, oil and gas extraction, and watering down the collaborative management commitment. The Trump administration’s strongest argument is that the Antiquities Act really only meant, as it did to Roosevelt, to protect specific landforms, archaeological sites and their immediate surroundings. Whatever the outcome—and the tribes have existing case law largely on their side, Bears Ears is worth noting in a discussion of Sands’s fine book because it shows Native ingenuity to protect what is sacred despite failures of religious freedom in the courts, and despite the capacity of law to engage what might first seem a contradiction or a paradox. In my work I’ve come to learn that religious freedom from a jurist’s perspective is not simply a matter of what it has meant or means at this moment, but what it can mean.