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At Home and Abroad: Winnifred Fallers Sullivan on Religious Due Process
19 Plays1 year ago
Imagine this scenario: There’s an American who’s part of a congregation of a Protestant church. While attending church, this American enters a discussion with a few leaders of that church about the meaning behind a certain scripture. This discussion develops into a disagreement and this disagreement results in the American being excommunicated from the church with little to no opportunity to defend his position within the congregation. With all this information in mind, I ask do you think this is fair? Or, does the American deserve due process within the church, and, if so, why? Why is it expected, specifically in an American context, that religious law follows the same procedures as secular law?
It’s this scenario and this final question that form the backbone of “The Rule of Law,” an essay part of the collection, At Home and Abroad, written by Winnifred Fallers Sullivan.
In today’s episode, Matt and Ira speak with Sullivan, provost professor in religious studies at Indiana University, where she teaches courses on religion, law, and the politics of religious freedom, among other topics. Sullivan is the author of many books, including four that analyze legal discourses about religion. She’s also the co-editor of At Home and Abroad.
Her essay, “The Rule of Law,” explores the ways that religious law and secular law overlap and diverge in an American setting. Sullivan uses the experience of one of her former students, who sought due process after being excommunicated from the church, to set the scene for the essay. Along with examining the mindset of this student, the three discuss the beginnings of American legal history, the complexity surrounding the term “fundamentalism,” and the benefits of categorizing the political and the religious.
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Transcript
Introduction to Interactions Podcast
00:00:02
Speaker
Hello, I'm Ethan Anthony and welcome to Interactions, a podcast about law and religion and how they interact in the world around us.
Excommunication and Legal Fairness: A Scenario
00:00:15
Speaker
Imagine this scenario. There's an American who's a part of a congregation of a Protestant church. While attending church, this American enters a discussion with a few leaders of that church about the meaning behind Eastern scripture.
00:00:30
Speaker
This discussion develops into a disagreement and this disagreement results in the American being excommunicated from the church with little to no opportunity to defend his position within the congregation. With all this information in mind, I ask, do you think this is fair or does the American deserve due process within the church? And if so, why?
00:00:54
Speaker
Why is it expected, specifically in an American context, that religious law followed the same procedures as secular law?
Rule of Law: An Essay by Sullivan
00:01:03
Speaker
It's this scenario and this final question that formed the backbone of the Rule of Law, an essay a part of the collection at home abroad, written by Winifred Follers Sullivan.
00:01:14
Speaker
published in 2021 by Columbia University Press. At home and abroad, the politics of American religion explores the way religion connects with law and politics on topics ranging from religion in Hawaii to the culture of yoga.
Meet the Hosts and Their Mission
00:01:28
Speaker
Our co-hosts are Ira Bedzo, the director of the Miriam Institute Project in International Ethics and Leadership, and Matthew Cavadon, the Robert Poole Fellow in Law and Religion. In this series, they'll be talking to authors from this volume and asking not only about the text and their inspiration behind the chapter, but also its timeliness today.
Interview with Winifred Follers Sullivan
00:01:49
Speaker
In today's episode, Matt and Iris speak with Linda Fred Fallers Sullivan, Provost Professor in Religious Studies at Indiana University, where she teaches courses on religion, law, and the politics of religious freedom, among other topics. Sullivan is the author of many books, including four which analyze legal discourses about religion. She's also the co-editor of At Home and Abroad.
00:02:12
Speaker
Her essay, The Rule of Law, explores the ways that religious law and secular law overlap and diverge in an American setting. Sullivan uses the experience of one of her former students who seek due process after being excommunicated from the church to set the scene for the essay. Along with examining the mindset of the students, the three discuss the beginnings of American legal history, the complexity surrounding the term fundamentalism, and the benefits of categorizing the political and the religious.
00:02:42
Speaker
All this and more on today's episode of Interactions, brought to you by the Center for the Study of Law and Religion at Emory University. We are here today with Winifred Fallers Sullivan. She is a professor at the University of Indiana in the Religious Studies Program. She is also an affiliate professor of the law school there and the co-director of the Center for Religion and the Human.
00:03:09
Speaker
She also happens to be the co-editor of the volume we've been discussing this series, At Home and Abroad, on issues involving American policies in both the domestic and international spheres and religion. Winifred, thank you very much for joining us and taking time out of your week to be here. I would like to start by introducing our viewers to an interesting anecdote you tell about a student of yours who, after he was disfellowshipped from a Protestant church that he was affiliated with,
00:03:40
Speaker
complained that he didn't feel like he had received proper due process.
American Legal History's Overlooked Influences
00:03:44
Speaker
You note in your chapter that that seemed like an interesting thing for him to claim that he was entitled to American-esque constitutional protections within a church setting. Let me ask you a meta question. Why do you think so many people believe that American legal history starts with our founding and not with the canon law or Roman law background
00:04:06
Speaker
that might have shaped how that student's church approached his proceedings? Well, that's an interesting question. Maybe it's several questions, a kind of compound question there. I think part of this might have to do with how history is taught in the US. I do think that for many Americans, history really begins in the US.
00:04:36
Speaker
The US has a very distinctive, even sort of exceptional history, particularly with respect to religion. What are some of the reasons why Americans have this sense that, yeah, our legal history only began 200 years ago, and that therefore churches and other more traditional bodies really shouldn't have any sort of legal norms that structure how they approach things?
00:05:03
Speaker
Well, I would say that the most distinctive aspect of American law about religion is this establishment. And over the years, as I've had ongoing conversations, particularly with Europeans, I find that, but also with Canadians, so really almost anyone outside of the US
00:05:29
Speaker
I find that we talk past one another. And I think one of the reasons is that we are speaking of a different object when we talk about the religion as either protected or disestablished or separated or regulated in some way. And I think that that is because of this establishment so that the churches
00:05:58
Speaker
in these other places had a prior history of relationship with the state and were institutionalized in different ways and remained in relationship with and then grew up with the state, if you like. And so that after separation, they legally recognized each other. Whereas I think in the US, disestablishment meant that there really was no church.
00:06:27
Speaker
There is a church in a sort of legal imagination in the US, but there is no church in the way that is meant in, for example, European history. And I think that that do-it-yourself quality of American religion is one of the reasons that Americans have this particular view of the relationship of religion and law.
00:06:55
Speaker
Are there also ways in which American, perhaps Protestants especially, or maybe just American Christians in general, set religion off from law in a way that they would think that law is just not appropriate for the religious setting? Does that contribute to that sense of difference as well? Yes, I mean, I don't know if you know an article by Marianne Case called Marriage Licenses, which is an interesting exploration of
00:07:26
Speaker
American law about marriage, and this was, this is maybe now 20 years ago, I can't remember the exact date of the article, and what led her to, she called me, I didn't know her before, to ask me about Protestant views of marriage, and she was particularly interested in why Americans cared about other people's marriages and why
00:07:53
Speaker
American Protestants were sometimes quoted as saying that same-sex marriage or gay marriage threatened their own marriages. And that is what puzzled her. And when she did research, what she discovered was that when surveyed, American Catholics and Jews tended, a lower percentage of American Catholics and Jews actually objected to same-sex marriage.
Religion and Marriage Law: A Comparative View
00:08:23
Speaker
than Protestants. And she concluded that because American Catholics and Jews have their own legal systems which regulate marriage, the state regulation of marriage was less of an issue for them. Whereas she would understand Protestants to have, in a sense, given over the regulation of marriage to the state so that the state is performing
00:08:52
Speaker
a religious task for the Protestant church. That's so interesting. And not that my experience is objective at all. I am only an end of one. But your discussion of how Catholics of Jews might look at secular marriage vis-a-vis religious rights of marriage, I get it totally.
00:09:19
Speaker
The way my experience has been both as a rabbi and as an observant Jew has been that there's two different types of marriages in America. Religious Jews go through both of them. One speaks to who they are religiously and one speaks to them as a member of a civil society.
00:09:37
Speaker
And they have different foundational premises, different reasons for, or purpose for why they are obligatory or a right, whether it's a civil right or a religious right, R-I-T-E, not R-I-G-H-D. And then that's it.
00:09:57
Speaker
When we go back, and I'm also really interested in the student who came to you and you write about in the introduction to your chapter, especially in your discussion of disestablishment, it seems as if the student didn't conflate American procedural due process with religion completely, but
00:10:24
Speaker
Well, actually, I don't want to make assumptions. What was the student psychology? What was the student's background in understanding his due process? Did he see it as a moral right or good? Was he confusing religious congregations with American society at large? What was happening that the student was so incensed by his experience? I think that that actually is quite a complicated question to answer, which I guess is what
00:10:53
Speaker
led me to try to write this piece, which is really a think piece more than it is really a seriously complete answer to that question. So I would say that he was not confused. I would say that in his indignation at feeling that the church judicatory had not
00:11:22
Speaker
honored his due process rights. He was actually in that instant speaking for a whole hundreds of years of history in the ways in which formal church process and secular legal process have grown up together and overlapped. So that he was in a sense speaking both as
00:11:52
Speaker
an American for whom the language of due process is part of our public conversation and our right to due process is something that we share as Americans. But I think also speaking out of his specific Presbyterian context, he was speaking about a history of church law that
00:12:21
Speaker
that also incorporates a sense of due process. So we was, I think, doing both simultaneously.
00:12:44
Speaker
This is so interesting. I want to dig a little deeper on this. Because in one respect, whether it's law or history, it set an expectation for the student. And what I can imagine in census student was that his expectations weren't met, whether that was like a formal legal system that established the expectations or just a history of quote unquote precedent or common procedure that would set that expectations.
00:13:10
Speaker
But what interests me about this and a question more about religion and how religion sees itself or religious adhere and see themselves vis-a-vis the religion in America is the relationship between law and faith. I know you mentioned Jews and Catholics are a legal-based religion, but
00:13:34
Speaker
What does that mean in terms of Protestant Christianity in America, given the students' expectations and what you've seen in your scholarship as well? Of course, there are many different kinds of Protestants. Sorry to paint a broad brush there.
Religious Beliefs in Jury Decisions
00:13:51
Speaker
No, that's OK. I mean, that's my job as a scholar of religion to always say, we've got to be really careful about these words and the generalizing of these words.
00:14:04
Speaker
maybe particularly in the US context where sometimes Protestants seem to look like Catholics and sometimes Catholics seem to look like Protestants, you know. You know, I think if you, you know, I recently wrote an article about juries and the use of biblical citation and biblical quotes in the context of
00:14:30
Speaker
criminal juries, especially in death penalty cases and the effort of many American judges and lawyers to sort of rid the jury room of biblical scriptural reference or any kind of biblical language and to prohibit lawyers also and witnesses from using scriptural language. And I think what you find
00:14:59
Speaker
in the studies that have been done about how juries think about their decisions, especially during the death penalty phase, you find Americans, of course, bringing their religious ideas about ways to think about guilt and to think about human motivation into the way that they make their judgments in those cases.
00:15:26
Speaker
That's not quite answering your question in the sense that I'm not sure that Americans think in a kind of abstract way about how does my faith relate to law. I think that for many, perhaps most Americans, religious understandings of the human person and of their motivation and of right and wrong are very religiously inflected.
00:15:54
Speaker
You discuss in particular that you think that neoliberal ideas about American law and the law and economics movement have denied American legal thought some important resources for thinking through morality and justice, resources that might be provided by some of those religious foundations of the law. Do you also think that the critical legal movement has contributed to stripping law and some of those
00:16:23
Speaker
important moral foundations. And I actually think that what's sometimes called law and theology movement, which I think is part of critical legal studies, broadly understood sort of historically in terms of the ways in which legal thinkers in the US sought to find resources for critiquing perhaps certain kinds of
00:16:54
Speaker
more sort of mechanistic or instrumentalized, uh, scientific kinds of use of law. Yeah. So I would say that, that critical legal studies includes, um, religious versions of critical legal studies, if that makes sense.
00:17:11
Speaker
I want to ask you something that you write in your chapter, which gave me a lot of food for thought, but I didn't know how to digest it.
The Misleading Term 'Fundamentalism'
00:17:19
Speaker
You said that fundamentalism is a word that obscures rather than clarifies. What do you mean by this? And what type of clarity are you seeking, which the term fundamentalism is not providing? And is there a word that might be more appropriate?
00:17:38
Speaker
So fundamentalism, of course, comes from a very specific historical event, which arises out of the response of some Protestant churches in the US to various, partly to Darwin, to new forms of geology, but also to
00:18:04
Speaker
forms historical approaches to reading the biblical text. And that in response to these 19th century, the importation from Europe to some extent of 19th century intellectual movements, a group of Protestant churches responded by publishing the 12 fundamentals, which were a kind of
00:18:34
Speaker
declaration of what was essential to Christianity in response. So for people who study American religion, this is what we always say is that's what the fundamentals are. And so there's a tendency to want to not necessarily readily see parallels because that has such a specific origin in the US context.
00:19:03
Speaker
I think another problem with sometimes with the word fundamentalism is that it can be understood to suggest that particular religious groups, not just Protestants, are somehow backward looking or not modern. Whereas most historians of religion would consider fundamentalists or those religious groups that are denominated as fundamentalists to be actually very modern because
00:19:33
Speaker
both of their response to modern conditions, but also the ways in which they selectively both seek to return to certain aspects of what they understand to be the essentials of their past, but also that many such movements also are, for example, technologically very sophisticated and in other ways are not at all sort of
00:20:02
Speaker
backward in the way that people imagine. So the problem with the word fundamental is it doesn't really say anything helpful and it conflates a bunch of aspects of modern religiosity and modern religious movement perhaps better described without such a word.
00:20:28
Speaker
I'm so sorry to betray my ignorance on this, but is the word not helpful for the general population, or is it also unhelpful for people who call themselves, or we would call fundamentalists? I mean, I wouldn't tell someone they can't call themselves
00:20:47
Speaker
whatever they want to call themselves. But does it mean something different when it's used internally in a congregation versus when it's used? I'm not sure it is ever used internally. I mean, I guess, well, that's not true, actually. So for I think it has begun to be used as a self description. For example, some Mormon Mormon groups
00:21:14
Speaker
that dissent from the mainstream Mormon church today call themselves fundamentalist Latter-day Saints. So yes, I think what they're doing there in terms of naming themselves as dissenters or in opposition to other groups
00:21:41
Speaker
is a similar movement perhaps to what happened at the end of the 19th century, although of course it's both the same and different. I think it's often used with a very negative valence in the media and perhaps by other people in public conversation.
00:22:04
Speaker
You know, it's funny, there's a not useful in my view. So there's a similarity. I mean, it's not exactly a similarity, but there's a parallel. So within either you would say Orthodox or Orthodox Judaism, you have groups of like Hasidim and Mitinagim or Vintinagim.
00:22:23
Speaker
And traditionally, Miss Nagdim was not a self-identifying phrase. It was used by people who said they were against the Hasidim. Because Miss Nagdim actually means like in opposition to her or against. But then it became almost a self-identifying marker for a while to define oneself vis-a-vis someone else or a contradiction to someone else.
00:22:46
Speaker
And then it dropped out of favor. Now it's not really used just because it served its purpose for a while and then it had the similar problems of either being too jargony or having negative connotation or prejudice when used. So the term then. Yes, and of course it's been used. It has been used a good deal in the last 25 years with respect to Muslims and in
00:23:15
Speaker
mostly entirely unhelpful ways and usually negative connotation.
00:23:36
Speaker
I want to ask you a question about the Constitution, especially since you mentioned it a bit in your chapter.
The U.S. Constitution as Sacred Text
00:23:41
Speaker
How much is the Constitution seen as a secular Bible, not only in terms of the sacred nature of it, but also in terms of its veracity or its truth nature? And in addition, you say that looking at the Constitution similar to a Bible or the Bible is similar to the Constitution as a uniquely American experience,
00:24:03
Speaker
But is it uniquely American in terms of it being a uniquely Protestant Christian experience? Or would you say even American Jews or American Muslims have similar views in terms of the relationship or the similarity between the Constitution and their sacred texts? I certainly, I'm not a sociologist. I don't have any kind of survey data about what you just asked. So I would be
00:24:33
Speaker
speculating or sort of basing this on my experience reading and knowing about these communities. Let me say, first of all, that one of the ways in which the US Constitution is distinctive compared with other constitutions in the world, if, of course, is the difficulty that's being amended. And so in that sense, it is more fixed and in that way similar to scripture.
00:25:02
Speaker
so that it seems to me that methods of reading the US Constitution and interpreting the US Constitution and many people that deserve this have a similar kind of style to the way people read scripture because of the way it's canonically fixed in a way that seems analogous to scriptural canon. So that not being able to amend the US Constitution easily leads
00:25:31
Speaker
those who want to change its interpretation to interpretive strategies that are similar to the way people interpret scripture, which is also fixed. So I think that is one quality that U.S. Constitution has that makes it distinctive from other constitutions. But it also has a kind of sacred quality as anybody who, you know, you go to the National Archives in D.C.,
00:26:01
Speaker
and see it under glass, you know, the original copies of it. So I think that there is a way and there's a sacralization of the American founding in many different ways. And I think many Americans share that sacralization. You discuss in your chapter also the phrase horizons of natural justice, which might be a nod toward that sacralization.
00:26:25
Speaker
Have you seen that in non-European or non-Christian stories about law as well? Understanding again that you may not have survived numbers, but is that something that you've encountered? You know, law is universal, and religion is universal in human societies, and they're interrelated everywhere. So using law now not just to refer to modern secular law,
00:26:55
Speaker
in a broader sense. So I would say that yes, everywhere religious understandings of the human person and religious understandings cosmologically part of law and law depends on those kinds of understandings everywhere. There are different ways in which the history of the institutional history of the formal institutions of religion
00:27:25
Speaker
and political governance are related to each other in different ways, in different places, of course. So to build off of that, in the United States where popular sovereignty is such an important concept, as is the idea of a voluntary church, especially in a lot of Protestant settings, how does that shape American attitudes towards
Unique American Religious and Political Perspectives
00:27:45
Speaker
law? Does it make Americans think about sacralization differently? Does it drive anti-institutional attitudes?
00:27:54
Speaker
whatever direction you want to take that in. That's a pretty broad question. Yeah, I don't know. I think, again, this is something that I've learned partly from my conversations with European colleagues that the lack of a church or a state in the US, but instead we the people being in charge of both religion and governance,
00:28:23
Speaker
does create a particularly unstable field in both domains. And so I think that makes the U.S. distinctive. I mean, with respect to law, I would say that also the exceptionalist way in which U.S. law largely refuses international law and jurisdiction also
00:28:54
Speaker
makes it distinctive and almost illegible to Europeans. You know, I think that the the particular, particularly, voluntary nature of and sort of almost do it yourself quality of American religion is confusing to many Europeans. This has been really helpful and very, very
00:29:23
Speaker
insightful thinking about not only the chapter, but I want to go back and I'm still thinking about your student. So I want to ask this, this last, I know it's crazy. I still want to ask, I want to ask about this, not only the student but seeing the student almost as a lens to see the broader American religious phenomenon
Final Reflections on Religion and Politics
00:29:41
Speaker
and
00:29:41
Speaker
Ask your thoughts on the relationship between the religious and the political. You could say the legal or the social. In terms of whether you have a civic religion or a theological religion or whether you have a religious community that has either a history or a law that sets expectations for process and procedure, have these terms of religious or political or these domains become so blended
00:30:10
Speaker
that parsing them into two separate categories is ultimately unproductive, or do you think that having these realms distinct is still helpful? What are your thoughts as a religion scholar in terms of the relationship between religion and other civic or social lenses or domains that intersect with religion? Well, I would say that the context in which we're having this conversation, although I would say not
00:30:37
Speaker
something that characterizes this conversation itself is of course, one of deep polarization in this country and of a constant recourse to various binaries, you know, secular religious, conservative, liberal, right, left, and that those binaries are really preventing us from
00:31:04
Speaker
understanding each other and living together in ethical ways. I think that, descriptively speaking, that the separation is not possible in the US, in part because we don't have the kind of institutionalization that would be characterized, for example, in most of Europe and differently in other parts of the world. But also,
00:31:34
Speaker
You know, even there, of course, the formal institutional separation belies what is, of course, also their blurred and overlapping relationship between ideas and institutions in those places. So I think, descriptively speaking, from my perspective, I think this is a helpful moment to think about how
00:32:02
Speaker
so-called religious and so-called secular domains share a good deal and can learn from one another and not to police that border. I think policing that border has resulted in a fairly sterile public conversation. But that doesn't mean that modes of governance will not still tend to specialize in various ways. I guess I think we need a period of fluidity in order to regroup
00:32:32
Speaker
if that makes sense. I don't know, I get to talk in this sermonic way because I'm an older citizen.
00:32:40
Speaker
Look, I get it. In some respects, it's helpful to have boxes to put things in, to speak bluntly and intellectually. While at the same time, once you put something in a box, you may be framing it in such a way that provides clarity at some points, but also limits your ability to analyze it and see the relationships between boxes.
00:33:04
Speaker
And having the fluidity sometimes allows for a broader perspective and clarity, even if that seems counterintuitive. Yes, I think so. We certainly appreciate you bringing a theoretical lens to our discussion that I don't think we've had yet.
00:33:26
Speaker
able to dig into these deeper ideas of how history and modernity have competed in shaping current ideas around law and religion in the United States in particular. So thank you and thank you for your work in compiling this volume. It's been a super interesting season so far on interactions discussing the various authors and your vision for drawing all these folks together and having them talk to one another.
00:33:51
Speaker
was absolutely fascinating. So we really appreciate the hard work that you and your fellow contributors and the co-editor did in putting this volume together. So thank you. You're welcome. It was a lot of fun.
00:34:08
Speaker
Thank you Winifred Father Sullivan for joining us in this discussion, and thank you all for listening. If you would like to stay updated on new and upcoming episodes, please be sure to like, share, and subscribe. The Interactions Podcast is distributed by the Center for the Study of Law and Religion at Emory University and Canopy Forum, and produced by Ethan Anthony.