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Is the Constitution Suited to Today's Church/State Issues?

A religion scholar discusses the failure of the courts to grapple with lived religion, the prison crisis and why we are all religious now.

Winnifred Fallers Sullivanis the director of the Law and Religion program at State University of New York's University at Buffalo Law School. In her two most recent books, The Impossibility of Religious Freedom(Princeton, 2005) and Prison Religion: Faith-Based Reform and the Constitution(Princeton, 2009), Sullivan argues that the constitutional frameworks of disestablishment and free exercise are unequal to the task of regulating church/state controversies today.

She says that the American church/state division has been made impossible by the shift of religious authority from the institution to the individual, confusing how we define religion and separate it from government.

Each book relies on her close examination of a case she participated in as an expert witness, which dealt with religion in a cemetery and in Iowa prisons, respectively.

The problems with defining religion play a central role in the argument that you've been developing over your last two books. Why can't we -- as Supreme Court Justice Potter Stewart famously said of pornography -- simply know it when we see it?

The word "religion" comes out of a particular history. There are various ways of telling that history, but one could say, from the perspective of someone like me who is interested in church/state issues, that the notion that religion is a discrete, bounded aspect of human culture and society is something that emerged in the early modern period, parallel with the emergence of the modern state.

With the secularization of the state and the differentiation of sociocultural formations within society, religion gets reinvented as something separate.

But the context in which that happens shapes what religion means. Politically, it comes to serve the modern state by providing a location in which modern citizens are trained to be moral, functioning members of society. This is a very particular understanding of religion, rooted in a particular kind of Protestant Christianity.

Naturally, once modern societies try to expand that role beyond Protestant Christianity, they begin bumping up against different understandings of where religion ought to fit.

So this project is primarily located in the situation of a religiously diverse society?

I regard all societies as diverse. This is especially so in light of a global shift of religious responsibility toward individuals and an acknowledgment, even if it's not politically realized everywhere, of the right of each individual to religious freedom. Then, religious diversity becomes a social fact virtually everywhere, within traditions as well as among traditions.

Do you see the argument you're making about the impossibility of religious freedom and disestablishment as being as true now as when the Constitution was written?

Yes, in a sense. There was a consensus about what religion meant in the U.S. at the time of the writing of the Constitution that most people today wouldn't recognize. But remember also that the government -- particularly the federal, national government -- was far weaker and less pervasive a part of people's lives. That's a very important part of this story, too.

How can the legal system catch up to this critique? Do we need a new First Amendment?

The First Amendment, of course, includes more than the religion clauses. But for all practical purposes, the religion clauses have very little legal bite these days.

I think the Supreme Court has gotten itself out of the business of managing religious diversity. Religion has become, and in my view appropriately so, an issue of political negotiation. I don't think it can be handled by courts very effectively.

The role of the Constitution in these matters lies in ensuring equal protection of the law for everybody, across many different kinds of cultural differences, of which religion is one. Within the legal context of our national commitment to equal protection, these differences ought to be negotiated politically.

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