‘The Impossibility Of Religious Freedom’

One book that I think everybody — but especially pagans — should read is Winnifred Fallers Sullivan’s The Impossibility of Religious Freedom. This work chronicles the legal battle Warner vs. Boca Raton, which was waged over the rights of individuals to engage in religious (?) practices at their loved ones’ grave sites. The work also highlights the fact that while we in America may think that spiritual practices of all sorts are protected under constitutional law, the reality of the matter is much murkier.

For example, in the case described in the book,  the city of Boca Raton banned the practice of Jewish familys leaving rocks on the headstones of their loved ones, framing the practice (which is carried out by Jews all over the world) as littering that created obstacles for the graveyard lawnmower. A judge ruled against the family members who objected to the ban because, in the judge’s opinion, the practice of leaving stones is not fundamental to the religion of Judaism. That is, the judge saw stone-leaving as secondary, merely ‘cultural’, not ‘religious’, not-so-central-to-the-faith —  and therefore not protected under the religion clauses. The judge was of the opinion that only practices specifically called for by religious law and holy texts are really “religious.”

Recently, influential evangelical David Barton, who was quoted on The Wild Hunt this week, has suggested that ‘paganism and witchcraft’ aren’t really religions, and that they are therefore not protected by the religions clause. I would like to suggest that, while Barton’s remarks came from a place of misunderstanding and hate, we may be able to take his remarks as a jumping off point into a broader discussion of paganism’s relationship to the law.

As Barton puts it, “The true historic meaning of “religion” excludes paganism and witchcraft … paganism and witchcraft were never intended to receive the protections of the Religion Clauses.

Now, I think we can divide this comment into two parts. I agree with Barton that, to a large extent, the “historic” meaning of “religion” has indeed excluded paganism and witchcraft (though I reject that there is any “true” meaning of the word). Perhaps better “traditional” than “historical.” But ‘by definition’ paganism and witchcraft have been seen, until quite recently, as exterior to or even anti-religion. This has been because religion has been defined in terms of the Abrahamic traditions, as well as others like Buddhism, etc… — That is in terms of those qualities relied upon by the judge in the Boca Raton case: Law, scripture, etc. Paganism today doesn’t have any of these things; therefore, it makes a sort of sense to say that paganism isn’t a religion.  …in a way.

But that is about as far as I can concede to Barton — and even then with (as you can see) many caveats. The real issues crop up with his assertion that paganism and witchcraft “were never intended to receive the protection” of the law. The problems here are manifest: First, it isn’t Barton’s job to decide what was or was not intended by the drafters of the constitution. Second, modern pagan communities could not have been imagined by the Founders since the relevant categories did not yet exist. That is, we’ve taken up the words pagan and witch and imbued them with new, positive (both in terms of “good” and in terms of “not negatively defined”) meanings, and so it is not appropriate to rely on the older, “traditional” definitions of those terms which make us all into anti-religionists, not when making legislation.

Having taken up these identities and put them into practice, we consider ourselves to be undertaking religious activities, and so feel that we should be protected constitutionally. BUT (Barton’s statement has prompted me to ask),  since we don’t have the sorts of legal or scriptural history expected and judged by the law (as highlighted in Sullivan’s work), do we still count as having a religion (or a group of religions)?

If, as in the case of the Boca Raton trial , whether or not a given practice is protected legally can come down to whether it is ‘fundamental’ to the religion in question… what exactly can any of us hold up as ‘fundamental’ to paganism? and what can we then demand be protected under the law? It seems to me  that, lacking these things, we need to be reconsidering our relationship to the legal definition of religion.

I think that, as long as pagans continue to approach the law as we are doing now — trying to speak of ourselves as a unified religion, which is not reflective of the reality of our communities, and suggesting that (in terms of definition) we’re a religion just like Christianity or Judaism — we are playing into a system that wasn’t designed for us.  (This is what Barton has suggested, but he means that paganism and witchcraft should be done away with. I’m taking all this in the opposite direction.)  The system was designed for law religions and book religions, not the sort of unorganized communities that make up contemporary paganism — communities in which an individual’s idiosyncratic interpretations and practices are honored and there is no orthodoxy nor orthopraxy. And I think that, as soon as we continue to play into this system, we are only making ourselves vulnerable to the sort of attacks that Barton and his ilk are making. The problem then becomes this: It’s not that we have to fight to get ourselves recognized as a religion in a setting where religion is defined as something we are not — rather, we’ve got to work toward changing the system and the law’s approach to issues of religious practice generally, into an approach that is more fundamentally accommodating to the realities of our experiences and our communities.


About John Harness
John Harness is an artist and educator in Chicago. He is a member of Socialist Alternative and the Klingon Language Institute. He writes about political activism and roleplaying games.

One Response to ‘The Impossibility Of Religious Freedom’

  1. Ali says:

    An excellent post! I haven’t read Sullivan’s book, but the ideas that he examines in it sound like things I’ve needed to consider on occasion. For instance, when I was still working as a waitress, the company had a specific dress policy concerning jewelry, etc. At the same time, I was keeping the flame with a Brigidine cill and, when I couldn’t be home tending the actual, literal flame, I wore a handmade flame pendant during my shift. Technically, it violated the company’s dress code, and I often wondered if I would be able to argue for my right to wear it based on the fact that it was a religious duty, or if they would claim that, as you pointed out, it wasn’t “fundamental” to my religion. Luckily, the issue never came up and no one attempted to enforce the dress code with me. But it did make me wonder…

    I think this also points to exactly why the success of The Druid Network in gaining religious charity status in the UK last year was so ground-breaking and important, for all of us. TDN was able to engage with English charity law in a way that forced it to expand its definition of religion, without trying to conform to expectations set up by the precedence of Abrahamic religions. And they did it by complicating the CC’s notion of religion by calling on current scholarship and and a closer examination of religions that the CC already acknowledged as such. Using examples from other widely-recognized world religions, they were able to show that “religion” as a category is far from homogenous or clearly defined, even among those traditions that we tend to take for granted as “obviously religious.” (Buddhist is a great example of that, as is Hinduism.) This kind of strategy works really well, I think – it’s a way of working “from the inside out,” but without having to compromise with or conform to inappropriate definitions and expectations. It’s playing with the system, without playing into it.

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