Religious Liberty in Law

 Lael Weinberger on Winnifred Fallers Sullivan

Church State Corporation
Church State Corporation: Construing Religion in US Law by Winnifred Fallers Sullivan. University of Chicago Press, 2020.

For years, the paradigmatic religious liberty case in American law was that of an individual’s conscience against the world. Religious parents didn’t want to enroll their children in a school that differed from their religious beliefs. An individual worker religiously committed to nonviolence object to working in a factory making turrets for military tanks. Conscientious objectors sought to avoid military service.

The days of the lone conscientious objector have waned. In recent years, most of the Supreme Court’s major religious liberty cases have featured religious institutions. Churches’ ability to hire and fire ministers was at issue in HosannaTabor and Our Lady of Guadalupe. In both cases, the Supreme Court affirmed that religious institutions have a right to choose their ministers without state influence. In both, the Court accordingly held that employment discrimination law couldn’t be used to challenge church decisions to terminate teachers at church-connected schools. A church school was the claimant in Trinity Lutheran, in which the Supreme Court held that the state had discriminated against religion by excluding religious schools from a state grant for playground construction for which any other private school could apply. Religiously-owned for-profit businesses were at center stage in Hobby Lobby (about religious exemptions from a federal requirement to provide contraceptive coverage in healthcare plans) and Masterpiece Cakeshop (decided as an issue of religious discrimination against a baker who objected to creating cakes celebrating same-sex weddings). The last decade has been, as legal scholar Zoë Robinson suggested, an era of religious institutionalism.

Winnifred Fallers Sullivan is a distinguished scholar of religious studies and law and religion. Her book, Church State Corporation, turns a humanist’s eye on the evolving law of religious institutions. Her central thesis is that the institutionalist turn has privileged an entity the existence of which the courts are perhaps not even supposed to recognize: the church. And in doing so, the court has papered over a wide variety of oversimplified, contestable claims about the definition of church, and indeed of religion more broadly.

Sullivan starts her book with reflections on the definite article in the phrase, “the church,” which featured in the Supreme Court’s decision in Hosanna Tabor. It was not just a church that received protection under the U.S. Constitution, it was the church.  The Court said that state authorities—going back to examples from medieval England—had long tried to exert power of “the church.” But how was a twenty-first century Lutheran congregation in Michigan the same thing as a twelfth century church in England? According to Sullivan, the Supreme Court unwittingly accepted that there is something about “the church” that transcends the tangible instantiations of the religious institution and instead expansively covers a religious domain, on religion’s own terms. The Court has conceptualized the church as a domain of spiritual authority. And yet in doing so, Sullivan worries that the has failed to realize how much it relies on contested theological premises to shape its conception. The idea that the church transcends its local manifestations is a distinctly Christian and theological concept.

In fact, Sullivan goes on to argue, the courts don’t have a well-thought out answer to what constitutes a “church” for purposes of the law. The slippery concept has expanded to accept for-profit corporations too, she claims. In Hobby Lobby and Masterpiece Cakeshop cases, Sullivan says, the court has effectively treated the for-profit corporations as churches, providing them with exemptions from general purpose laws in order to enable the institution to pursue its religious objectives.

In this book, Sullivan is not primarily interested in the arguments about why religion is special (or not), why religious liberty matters (or doesn’t). She is instead focused on the rather more introspective problem of the courts’ lack of self-awareness in how the courts have grappled with the myriad nuances of religious expression and identity that come up in the religious institution cases. Sullivan criticizes these cases for leaving unaddressed important issues about scope of coverage. She repeatedly asks, what is a church? In one set of cases, the court says that an entire hierarchical organization constitutes the church. In another set of cases, courts treat an individual congregation as the appropriate unit of analysis. These two groups of cases are familiar to lawyers and scholars working the area. Sullivan attempts to push the analysis still further by including the for-profit corporations exercising religion in the same conversation. What makes such an entity a religious institution?

Sullivan finds a unifying theme in all of this inconsistency in the courts: a simplistic approach to theology. She repeatedly critiques the Supreme Court’s oversimplified assertions and assumptions about church history and theology. One way to improve the field, Sullivan suggests, is to let theology talk back. She offers some brief experiments along these lines.

Take for instance a 1952 case about the control of a Russian Orthodox Cathedral in New York. Two bishops claimed the rightful authority: one, elected by a group of American-based Russian Orthodox congregations and the other appointed by the Moscow-based patriarch. With the schism taking place against a backdrop of Cold War, the New York legislature had passed legislation that effectively vested control in the American bishop. The Supreme Court said that the Russian Orthodox Church was a hierarchical entity and that it was a violation of its free exercise rights for the legislature to contradict the hierarchical authority. So far, so good. But Sullivan quickly turns to critique the Court’s hasty survey of a thousand years of Russian Orthodox history. What if the church is not the hierarchical organization, but is instead the people who constitute the congregation? Sullivan describes is a long tradition of theological argument to that effect, even within hierarchical congregations like the Russian Orthodox Church. The Supreme Court, she suggests, had in fact taken a side in an internal church debate. Is this any less troubling than the New York legislature’s intervention on the other side of the same debate? Rethinking the church along these lines would challenge the Court’s assumption that it could simply defer to an established, hierarchical model of church governance.

Or what if the church was conceived as not male-dominant, but rethought through a feminist lens that emphasizes women’s religion? Sullivan notes that the courts have built church autonomy doctrine around the assumption that churches need to be able to discriminate based on religion to ensure an all-male priesthood as the paradigm case. Offering a feminist critique, she suggests that church autonomy is built on a male-centric ecclesiology that relegates women’s work to the backdrop, and extrapolated this particular strand of the Christian tradition out as the model for religious institutions generally. Perhaps feminist ecclesiology could shake up the assumptions.

Or what if American religion was rethought intentionally to de-privilege the dominant of the white church, and to listen more closely to the black church? Sullivan offers a close look at the religious programs offered in a southern prison to argue that policy approves of a certain model of pro-social religion, to the exclusion of less convenient (more disruptive!) traditions.

Sullivan does an excellent job of revealing oddities and inconsistencies in subtle details of the cases on religious institutions, of reading legal sources in creative ways to highlight unspoken assumptions, and of using nonlegal sources to pose questions about the way the law deals with religious institutions. The book is full of learned reflections on church history, religious sociology, and new directions in theology. Scholars of law and religion from any number of disciplinary backgrounds will find the book rich with ideas and provocations.

But many readers will, at the same time, find the book frustrating, precisely because it raises so many more questions than it answers. Sullivan repeatedly teases ideas—what if we reimagined the issue from the perspective of ?—but stops short of fleshing them out or filling in the details. The book provides more in the way of critique than it does in constructive alternatives.

Sometimes the book uses cases as a jumping-off point for critique and analysis, but in a way that seems to get far afield from the point of the material that inspires the questions. The courts willingly accepted that religious people oppose abortion in the Hobby Lobby case. But Sullivan asks, “How does the Court know that these convictions are religious ones? What if we called them moral? Or political? Or aesthetic? Or secular?” (112). All interesting questions, to be sure (and as someone who has long thought that the definition of religion is a troubling issue in the law and religion field, I am always glad to see people grapple with them). This launches Sullivan on an excursus through the history of the Mennonites and Pentecostals (the traditions held to by the claimants in the Hobby Lobby case) and the histories of those movements’ engagement with abortion and contraception. These are fascinating histories.

But does Sullivan mean to suggest that, because particular traditions have not always been entirely clear in their analyses of contraception, the court should have second-guessed the religious reasoning of the Hahn and Green families in the Hobby Lobby case? Wouldn’t this be a kind of institution-over-individual analysis that she critiqued elsewhere in the book? If we are not to use this history to second-guess the religious beliefs of the Hahns and the Greens, then how does the denominational history matter for the Hobby Lobby case? Or is all of this just to say that the Court was sloppy in some of its incidental descriptions (unqualifiedly asserting that “[t]he Mennonite Church opposes abortion,” for instance)? It’s not entirely clear from the book.

Sometimes Sullivan provokes thought by rearranging her objects of analysis—the texts and legal doctrines the provide her jumping-off point—in ways that will surprise her legal readers. This is fine, as far as it goes. But it does mean that the book elides some of the distinctions that are central to the legal doctrine and the judicial decisions. Is Hobby Lobby Stores, Inc., effectively a church under the law? It’s an interesting question to think about, and Sullivan draws out some parallels between the treatment of churches and of the chain of stores. But of course, in the cases, this ignores major differences between these institutions, how they’re treated, and how they’re analyzed. Church autonomy cases are based on the constitution; the Hobby Lobby decision is based on a statute (the Religious Freedom Restoration Act). The details of the analysis are different under these two sources of law. And the character of the institution as an institution matters in rather different ways. Church autonomy cases purport to care about the right of a religious institution to govern itself as such. The Hobby Lobby majority asks whether individuals lose their ability to assert religious exercise rights because they’ve running their business in a corporate form. Of course, there are ways to critique this framing, but Sullivan hurries to reframe without taking seriously the distinctions that the Court thinks are there. This just makes it hard to translate Sullivan’s analysis into serious engagement with the cases on their own terms, hard to imagine how her projects of critique and reframing could translate into operational legal doctrine.

All of this might be beside the point for Sullivan’s purposes. She is less interested in what the courts do than in how they—and we—think about the subjects of church, state, and corporation. But for readers like myself who care a great deal about what the courts do, it is likely to leave the reader unsatisfied with the legal analysis.

Scholars of law and religion from a wide variety of disciplines will find Church State Corporation a thought-provoking volume. It is rich with critique and bursting with ideas, even if its analysis is not consistently satisfying. It sometimes relied on rereading sources in ways that failed to take them seriously enough on their own terms. And the analysis often stopped a step short of landing the punch or completing the analysis, at least if one was hoping to hear concretely what the rethinking process could change in the law. It is both a strength and a weakness that the book raises more questions than it answers.

Lael Weinberger is the Olin-Searle-Smith Fellow in Law at Harvard Law School. He was the Raoul Berger-Mark DeWolfe Howe Legal History Fellow at Harvard from 2019-20. Lael earned a JD with high honors from the University of Chicago Law School and clerked for Judge Frank Easterbrook on the Seventh Circuit Court of Appeals and for Chief Justice Daniel Eismann on the Idaho Supreme Court. Lael also earned a PhD in history at the University of Chicago. His reviews and essays have appeared in publications including Newsweek, National Review, Claremont Review, First Things, Christianity Today, Los Angeles Review of Books, and theNew Rambler Review. Lael is on Twitter @LaelWeinberger.