Michael Graziano

Scholar of American Religious History

Tag: Religion and Law

Chaplains of the Spiritual

An earlier version of this post originally appeared on the Religion in American History blog.

I’ve recently had a chance to start working my way through Winnifred Sullivan’s new book, Ministries of Presence: Chaplaincy, Spiritual Care, and the Law (Chicago, 2014). It’s a thought-provoking project, and I wanted to offer some early reflections.

When thinking about hot-button issues in American religion and law, chaplaincy programs probably don’t come to mind. Chaplains are as ubiquitous as they are uncontroversial. And, in a sense, this is Sullivan’s starting point. While a great deal of ink (pixels?) has been spilt decrying/celebrating the Hobby Lobby decision, Sullivan sees chaplaincy programs as important precisely because they go largely unremarked upon. Sullivan looks at a variety of chaplains in a number of settings in the contemporary United States, including (but not limited to) chaplains working in the military, healthcare, and prisons. Drawing on Foucault’s idea of pastoral power, Sullivan also notes that while these settings may have unique qualities, they also have more than a little in common.

Chaplains, in Sullivan’s telling, inhabit a peculiar legal space. They embody the compromises—at times quite awkward, arbitrary, and unclear compromises—that populate “ordinary law,” the law lived out in everyday situations below the level of the Supreme Court (13).  The widespread and self-evidently appropriate reliance on chaplains in, say, the United States Army, local hospitals and—last but not least—the Maine Game Warden Service is in some sense the result of America’s peculiar history—halting, reversing, sputtering—with disestablishment.

Sullivan employs the metaphor of the “broker” to describe the role of chaplains in contemporary settings. Chaplains sit at the intersection of the secular employers that regulate them, the religious hierarchies that train and certify them, as well as the individuals with whom they work—who in many cases have their own ideas about the role and functions of the chaplains ministering to them. Sullivan demonstrates how this attention to the “spiritual” components of human life—rather than the “religious”—provide chaplaincy programs with legal space in which to maneuver. Such assumptions about the universal spiritual nature of people enable different metrics of spiritual care and assessment, a theme Sullivan takes up throughout the book.

The institutional place of the chaplain combines with the language of “spirituality” to successfully navigate a variety of First Amendment obstacles. This is key to the chaplain’s ubiquity. Terms like “spiritual care” blur the legal difference between religion and spirituality. Sullivan demonstrates how spiritual care is perceived as both a public good (something necessary for the preservation of good order) and a commodity (something measured, assessed, and exchanged). In this understanding, if something is spiritual, it is universal and available to all—and thus sidesteps First Amendment restrictions about religion, which is necessarily divisive and partisan.

Sullivan also details the context in which these changes are taking place. “Religious freedom, legally speaking, now increasingly means government providing opportunities for Americans to encounter their religious selves and realize their religious commitments” (3). The place of chaplains in American life is inextricably linked to broader changes in American culture, including a Supreme Court that sees religion as “being neither particularly threatening nor particularly in need of protection” (17). In this way, a retreat from the high-water mark of legal separationism in the mid-twentieth century has created its own peculiar institutional arrangements. “Disestablishment,” Sullivan writes, “has once again produced a new establishment” (2).

Sullivan is engaged in several historiographies. This is reflected in rich footnotes (which include at least one Monty Python reference) throughout the book. The history of American religion and law receives attention of course, as does the study of chaplains and chaplaincy programs in their own right. There are also useful insights for those interested in the secular, and Sullivan’s arguments draw from John Modern’s Secularism in Antebellum America (2011), Elizabeth Shakman Hurd’s The Politics of Secularism in International Relations (2008), and Tracy Fessenden’s Culture and Redemption (2006). Also of note is Sullivan’s effort to contextualize “spirituality” in terms of both American law and American religious history. Here, Sullivan is in conversation with other friends of the blog, including Courtney Bender’s The New Metaphysicals (2010) as well as Leigh Schmidt’s Restless Souls (2005).

To paraphrase Jeff Goldblum in Jurassic Park, “Law, uh, finds a way.”

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Coming Soon to a High Court Near You

This post originally appeared at the Religion in American History blog.

The Roberts Court turns ten on Monday. With a new term about to begin, I thought it would be helpful to preview upcoming cases that might be of interest to readers of the blog. The previous term provided no shortage of data for scholars interested in the legal construction of religion in the United States (most notably in Greece v. Galloway and Burwell v. Hobby Lobby), and this term promises to continue that trend. Last term witnessed an increased emphasis on the protection of religious exercise, and it is clear that the Court will continue dealing with similar issues in the months ahead. Instead of looking at religious corporations, though, the Court will be dealing with prison law and, well, Abercrombie and Fitch. Both of these cases involve the religious exercise of American Muslims, and it will be interesting to see how expansive this renewed protection proves to be.

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Cross-Post: Teaching Religion & Law in U.S. History: Part II

Note: this two-part post about teaching a course on “Religion and Law in America” was co-written with Charlie McCrary and originally appeared on the Religion in American History blog.

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While there is no shortage of avenues to explore religion and law, we decided to focus this semester’s course on the theme of pluralism. There is no better idea through which to explore the contradictions of American jurisprudence on religion. We also started the course with a guiding question: “How did we get here?” That is, to take one recent example, how did American religion law reach a point where closely held corporations can successfully claim First Amendment rights to free exercise of religion?

We began with Hobby Lobby, a case that made headlines this summer. On the first day we assigned Winnifred Sullivan’s excellent piece on the decision (which was not, through a great feat of humility and restraint, titled “I Told You So”). One of the arguments we will be making in the course is that the First Amendment has always been caught in a torturous contradiction: empowered to protect all religious expression while selectively, strategically, infringing on others. After World War II, with the expansion of rights to other religious minorities, the internal contradiction was laid bare for those previously in the majority to see.

Chief Justice John Marshall by Henry Inman, 1832

The course is a timely one. The Supreme Court has (yet again!) been generous to Americanists with an interest in law during their most recent term. McCullen v. Coakley, Town of Greece v. Galloway, and (of course) Burwell v. Hobby Lobby Stores, Inc. were all decided during the Court’s 2013 term. And, promising more excitement to come, the Court ended with the Wheaton College injunction as a kind of judicial mic drop. These cases provide a fascinating look at where we’ve been and where we’re going. They are also excellent fodder for discussions in class.

We wanted to make the most of this timeliness. The first half of the course will be a condensed narrative of religion and law in American history. We’ve assembled a religion law highlight reel in which we move from the Quebec Act (1774) to Hobby-Lobby (2014) in six weeks. We then switch gears during the latter half of the semester and run the course as a seminar. We’ll read four excellent books, coupled with fine-grain lectures on relevant e.gs. We’ll start with Kevin Schultz’s Tri-Faith America: How Catholics and Jews Held Postwar America to Its Protestant Promise (2011) and match it with a lecture on government support for religious pluralism during the Cold War. Next, we’ll move to Hugh Urban’s The Church of Scientology (2011) and discuss how the IRS lingers as the specter of messy disestablishment period politics. Powerful state classifications of religion makes an easy transition to Winnifred Sullivan’s recent A Ministry of Presence: Chaplaincy, Spiritual Care, and the Law (2014), along with further discussions of the connections between bodily health, the law, and American religious history. We’ll wrap up with Katie Lofton’s Oprah: The Gospel of an Icon (2011). Lofton’s book struck some of our students as a strange inclusion (though, of course, they had not yet read it). To doubters, whether inside our course or out, we kindly direct you to Amy Frykholm’s review of the book at The Christian Century:

But the eerie feeling I had while reading Kathryn Lofton’s account of the TV maven is that I have been breathing Oprah’s reality, vocabulary, consumer choices and worldview in the cultural air all around me. I have not been immune to the Gospel of Oprah, and the fact that her influence on me has been unrecognized makes it no less profound.

What Frykholm gets at, and what we hope our students come to see too, is that decisions about law, taxes, coverture, etc., are made exponentially many more times outside of the courtroom than in it. Recognizing those influences, as recent work has shown, is both profitable and difficult.

This organization was attractive since it seemed a good way to provide students with a background in American religious and legal history before slowing the pace in order to focus on more in-depth examples. Since this course has no pre-requisite at our university, it is important that students have some of the basics covered in both traditionally “religious” history (“What is disestablishment?”) as well as traditionally “legal” history (“What does it mean that the First Amendment was incorporated against the states?”).

Of course, it’s not easy to draw a religious/legal line between this or any topic we discuss in class, which is part of the attraction of teaching this course. One of the things students walk away with is an understanding that American religious history and American legal history are inseparable. The Constitution and Bill of Rights were birthed out of a largely Protestant world with largely Protestant assumptions. The evolutionary route of the First Amendment as it currently stands is unimaginable without the influence of Native Americans, Jehovah’s Witnesses, Catholics, Bob Jones University, Mormons, atheists, Scientologists and, yes, a certain retailer of arts and crafts.

Cross-Post: Teaching Religion & Law in US History: Part I

Note: this two-part post about teaching a course on “Religion and Law in America” was co-written with Charlie McCrary and originally appeared on the Religion in American History blog.

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This semester, we will be co-teaching a section of Religion and Law in U.S. History. We’re both quite fond of the subject matter, and we thought it might be interesting to take a day to talk about why scholars of American religious history may find it beneficial to pay attention to American legal history, and more specifically to the history of religion law.

The intersections of law and religion provide an important data set for historians of American religion. They allow for attention to institutions and state power, especially in conjunction with more common ARH concerns like minority voices, secularism, pluralism, and disestablished “lived” religion. For us, there are at least three reasons the study of law and religion is compelling: (1) it’s a way to do tangible studies of historical formations of the category religion; (2) the object of study provides a framework for a structured approach to history which allows for synthetic, grand narratives by paying attention to institutions; and (3) it helps scholars of American religion incorporate debates about the category “religion” in religious studies by taking the state’s definition of “religion” as its frame of reference.

Supreme Court Chambers, by flickr user Phil Roeder

Supreme Court Chambers, by flickr user Phil Roeder

We would like to linger on this last point for a moment. There is a way in which attention to law and religion subverts many of the theoretical issues in the study of religion in America. The historically problematic and theoretically contested category “religion” and what it may or may not signify can be set aside (in a sense) to focus instead at how the law defines religion. The question of whether “religion” exists—whether it is in fact “solely the creation of the scholars study”—can be placed on the backburner because the taxonomic order being investigated is one maintained, by lawyers, judges, legislators, etc.–not by scholars. Thus, in this way, the question of whether and how one can talk about religion can inform the work (and the course) without bringing it to a halt. In addition, by tracing the way in which the law strategically selects some things as religious and others not, scholars of American religious history can also begin to track how the law conceptualizes “secular” areas in which religion is seemingly absent. Indeed, the very fact that the law—and institutions integral to it like the Supreme Court—solidifies certain spheres of social life as completely (and unironically) secular challenges historians of American religion to interrogate their theoretical frameworks. That is to say, scholars should differentiate between their own frameworks and their data’s, a tricky and technical task when our theoretical terminology is also, at the same time, a “native term.”

Legal history is the history of contestation. By definition, it is interested in who “won,” who “lost,” and why it happened the way it did. It would be difficult to write any legal history without this attention to winners and losers. As a result, American legal history is predisposed towards investigating minority groups, since they were more often than not on the losing end of these legal battles. Any group that was not a member of what David Sehat terms the “Protestant Establishment” would be applicable: Mormons, Catholics, Native Americans, Scientologists, and Jehovah’s Witnesses have all left their impression on the court system, and legal history is one mechanism by which historians can track these groups. This is the reason Sehat defines his narrative as one of American religious history “through its dissenters.”

Of course, legal history can also track the rise and fall of various Protestant groups, particularly in the early nineteenth-century post-disestablishment battles over taxation, incorporation, and church property. Through these battles, we can observe the category “religion” being legally created and recreated. One caveat to the legal history approach, though, is the somewhat limited nature of the data set. Even with such a wealth of sources, including religious-freedom court cases from the local to federal level, as well as less-studied issues like tax codes, some groups still remain absent from sources. For instance, some were so extremely out of power that they were not able to contest, or had to have others contest in their stead. The most prominent among such actors were enslaved African-Americans, who often had little to no recourse to the law. Nevertheless, slavery and the personhood and rights of slaves (if not often slaves as actors themselves) were ever-present in nineteenth-century legal debates and cases, such as Dred Scott v. Sandford (1857), as well as various attempts by state and colonial legislatures to regulate slave life.

The working thesis of the course is this: the operative understanding of “religion”/ “religious” informing the framers of the Constitution is far narrower than most Americans’ understanding of what the terms mean today. This tension has been evident for a long time, prominently tested in cases like Reynolds v. United States (1878), which raised questions like, “is polygamy religious?” and “is religious action protected–or just beliefs?” For obvious reasons, Jefferson and Madison weren’t thinking about polygamous Mormons. In the last sixty or seventy years the United States has undergone significant changes to its religious demographics, from predominately Protestant to “Tri-Faith” to “pluralist.” How can the law, written in the late eighteenth century and first tested and defined in the nineteenth, still work in this environment? Slippery pluralism and a hazy ambivalence as to what counts for Americans as “religious” create real problems for the black-and-white world of law. This problem was glaringly evident in recent dissents by Justices Sotomayor (to Wheaton) and Ginsburg (to Hobby Lobby), which rested on anachronistic, narrow, and ultimately inadequate definitions of what “religion” means and who counts as a “religious organization.” Simply put, religion law is not well equipped to deal with the fact of religious diversity in a “pluralistic” nation–a reality that, through disestablishment and religious freedom, the law itself was instrumental in creating.

Cross-Post: Imagining “Time” in American Religious History

This post originally appeared on the Religion in American History group blog.

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In “America’s Memory of the Vietnam War in the Epoch of the Forever War,” a recent essay for the Los Angeles Review of Books, H. Bruce Franklin reflects on the American national memory of war. Franklin observes that many (if not all) of his students have lived their entire lives while America has been at war. “How many people alive today have ever lived part of their conscious lives in a United States of America at peace with the rest of the world?” Franklin continues, “How many Americans are even capable of imagining such a state?”

Image Courtesy Wikimedia Commons

Image Courtesy Wikimedia Commons

This is one of the tensions explored by Mary Dudziak in War Time: An Idea, Its History, Its Consequences (Oxford, 2012). Dudziak is primarily interested in how Americans have understood “wartime” as well as the idea’s legal implications, and in this the book is similar to other recent studies that give greater attention to temporality. “Wartime is not merely a regulation of the clock,” Dudziak writes, “it is the calibration of an era. Continue reading

Cross-Post: Defining “Post-Secular”

The following is cross-posted from the Bulletin for the Study of Religion Blog. The following is my contribution to the question, “How do you define postsecularism, postsecular, or the postsecular?” This question elicited some great response from the other bloggers on the site, which you can find at Part 1 and Part 2 of this series. You can follow the Bulletin Blog on Twitter at @religionbullet.

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I think the term “post-secular” is fraught with many of the same problems as the rest of our disciplinary vocabulary. When the term is used in an American context (with which I’m most familiar), it seems to me it is often used uncritically to describe a situation in which it’s cool to say “I’m spiritual but not religious.”

I’m not particularly attached to the term but I will consider how it might be analytically useful in certain situations. “Post-secular” might be used productively to describe a state of affairs in which those in power recognize some of the problems of a religion/secular dichotomy while, at the same time, drawing their power and authority from a system that is premised on just such a dichotomy. In this situation, those in power recognize an area of social existence called “the secular” (in which there is ostensibly no religion) and have to apply that neat framework to a messy reality. Roberts TIMEFor better or worse, the most powerful theorists of the post-secular in American life are the nine members of the Supreme Court who have possessed, since at least 1947, the power to determine the particular religiosity/secularity of public spaces and acts under review.

Consider Chief Justice John Roberts’ comment in Hosanna-Tabor (2012) in which he compares the ingestion of peyote by Native Americans (ruled unprotected in Smith) to a Protestant church’s power to fire any employee it deems a “minister” (unanimously protected in Hosanna-Tabor):

Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

It is as if the justices haves some sort of theological Geiger counter with which to take readings: how religious is the act in Case XYZ? Fully religious? Only 80%? Where’s the tipping point? This might seem absurd (it is), but it is also one practical response to the “post-secular” situation described above. Many of the benefits (i.e., exceptions to generally applicable laws) of the First Amendment are premised on an individual or institution being religious or secular. While the justices may not always see a hard edge between religion and secular, it turns out that there’s no such thing as “a little bit tax-exempt.” As Charles McCrary rightly points out in part one of this series, this is why the question of “Is it religious?”—a question which many of us are tired of hearing—remains an incredibly important and powerful question in the realms of law and policy. And I wonder whether a term like “post-secular” might help to describe these competing paradigms.

Cross-Post: Response to Kelly J. Baker

This post originally appeared on the Bulletin for the Study of Religion’s blog. You can view the rest of the responses as they are posted on the Bulletin’s blog.

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“When we conceal from our students our hard work, that which is actually the way we earn our bread and butter, we produce a number of consequences. I remember testifying once before the California state legislature and facing a legislator who wanted to know why professors should be paid to read novels, when the legislator himself read novels on the train every day. Well, that was the price of our disguising the work that goes into things.”

                                     -J.Z. Smith, “Duplicity in the Disciplines”

“A new present requires a new past.”

                                                            – Sydney Ahlstrom (1972)

In “Evidentiary Boundaries and Improper Interventions,” Baker argues that our field suffers from a lack of attention to the boundaries which separate legitimate from illegitimate evidence. She puts it most succinctly in the footnotes: “What I want to point to, however, is how some evidence is employed to mark legitimate religion/religions” (Baker 2012, 10). Baker’s attentiveness to these boundaries is helpful, as are her suggested improvements. Baker argues that it cannot be improved by simply adding more to the canon. Expanding coverage to every group for the sake of doing so, she suggests, smacks of an outmoded trust in pluralism as progress. However, since I suspect a post detailing my agreement with Baker’s article would not make for an interesting read, I will highlight a few areas to challenge. In short, though I agree with the substance of Baker’s critique, it is with the why of the critique that I am more troubled.

Baker’s evidentiary concerns are evidence of astute scholarly analysis: “If the “illegitimate” functions as code for “inauthentically” religious, we should push against that boundary to know why exactly legitimacy or illegitimacy still matters for the subfield” (Baker 2012, 7, emphasis my own). While Baker’s observations are insightful, her normative claims about the state of the field and its potential future—that which “we should push against—warrant further analysis. Authenticity struggles matter to Baker because “authentic” religion still matters for American culture as a whole. Yet whether it is to achieve tax-exempt status (Urban 2011) or to secure political representation (Flake 2003) the boundaries of legitimate/illegitimate are not just those drawn (or imagined) by scholars. The fear that Baker identifies and hopes to alleviate, then, is unavoidable because the category of religion is contested in the broader public sphere. Continue reading

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