Winnifred Fallers Sullivan We Are All Religious Now. Again.

as the other essays in this volume attest, we are living in an interest ing time, one that is seeing a reappraisal of the separation we had often thoughtlessly assumed necessary for modern liberal democratic statesthat between the religious and the secularor, as the now dated expression would have it, between church and state. The essays in this issue of Social Research describe when and where such ideas and practices originated, why various separations have been made in various times and places, but they also query whether such a separation is really possibleas we have imagined it. And, whether such a normative commitment to separation continues to make descriptive sense. In this essay, I will set current reappraisals of the secular, of secularism, and of secularization, in the context of the ways in which law regulates religion in the United States today. Religion under the rule of lawas it is practiced in the United States. One way in which law in the modern period has been understood is as that which is quintessentially capable of being truly acultural, secular, autonomous, universal, and transparent. The power of this understanding can be seen in its persistence even after the trenchant critiques of legal realism and critical legal studies, among others (Schlegel 2008: 16-20). Law is that which is separate. Which stands alone. And above. Among social institutions, law is that which has most successfully distinguished from itself the religious institutions with which it was formerly associated. That separation, that presumed secularity of law, tends everywhere today to subordinate religion formally

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to the rule of law. Nation-states since the early modern period have granted a certain measure of freedom to religious groups that agree to perform their assigned task of training moral and faithful citizens and that acknowledge the supremacy of nation and state. Religious groups that do not accept this task and acknowledge this supremacy are controlled in other ways. These are the rules in the United States as well. But Americans in the United States have a peculiar set of customs when it comes to the legal regulation of religion. To an extent unfamiliar in most every other country in the world, the subordination of religion to law in the United States is achieved through a distinctive sensibility about the essentially antinomian nature of religion. If law is that which is quintessentially that which is secular, religion is that which is not law. Religion is also understood to be on its own in the United States. It comes into contact with government in various places, in the collection of taxes, in the regulation of chaplaincies in the military and in prisons, in the administration of zoning laws, and in myriad laws regarding everyday life, marriage, food production, the wearing of uniforms, and the accommodation of cultural practices in schools and the workplace. But government has no comprehensive stance toward or relationship with religious organizations. And religion formally understands itself to be about something different. Religion and government are understood to operate in different registers. There is little memory or legacy of the former intermingling of religious and political administration, as there is in most places. This lack of a formal partnership between church and state might be considered particularly surprising in light of the oft-noted importance of religion for most Americans. Americans certainly think of themselves, and others think of them, as more religious than other moderns. They report belief in God, church attendance, and frequent prayer at higher rates than people in many other countries. Yet by other measuresmobility, individualism, consumerism, a shallow sense of history, faith in technologywe seem to be just as modern and secular as anyone elsemaybe even hypermodern.

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Why so self-consciously religious? Sociologists offer various explanations (see, for example, Casanova 1994; Davies 2002; Norris and Inglehardt 2004). Why are we so proud of our religiosity? Undoubtedly, it has been partly a way to distinguish ourselves from Europeans, whether of the Jacobin or Marxist variety. And from an academic perspective, there is a sense in which it is entirely arbitrary whether one calls the behavior of Americans religious or secular. Given the stakes, though, for Americans, in terms of their sense of their own exceptionalism, one might say, I think, that the U.S. way to be secularor modernis to be religiouswhile the European way of being religious is to be secular. Another way of saying that, borrowing from Talal Asad, is that the vaunted U.S. religiosity is a particular formation of the modern secular (Asad 2003). Other observers of U.S. religion have made similar arguments, often with disparaging overtones, as if to say American religion is not real religion. We cannot really believe what they tell us in the surveys. What they call religion is actually rather childlike, superficial or false. It is neither priestly nor prophetic. Merely a celebration of the status quo. A celebration of the American way of life (Herberg 1955). I make no such judgment. It is what it is. I am interested here in the ways in which this U.S. religiosity, this formation of the secular, is distinctive because of the law. I am interested in how law has structured the phenomenology of U.S. religion. Because the religion clauses of the First Amendment to the U.S. Constitution are a significant part of the American myth of its own religious self-understanding, Americans understand themselves to be successfully modern and religious in large part because of the First Amendment. American religion is understood to be naturally strong and healthy and beneficial because it is distinctively freefree of government.

is american religion free? and did law actually accomplish this? It is somewhat difficult in actual fact to sort out which came first, the religion or the law. Did the First Amendment simply codify what were already accepted social facts, that is, that a religiously

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diverse country could not find a majority to establish a national church and that the United States had no sacral identity as a nation because power was vested in the people? Or did the religion clauses of First Amendment themselves inaugurate a new religio-legal way of being on the earth, setting the churches free to realize themselves in a new way? Certainly the United States was already very divided religiously by the end of the eighteenth century and the new federal government was a government of limited powers, not a paternalistic state inheriting the sovereign authority of the absolute monarchs that preceded it. But the revolution and the constitution making are also acknowledged by American religious historians to mark a real break in American religious history. The Baptists and Methodists that added their energy to the fledgling democracy and evangelized the West were a different kind of Christian than the Congregationalists and Presbyterians and Quakers that settled the colonies and helped to form their politics. And nineteenth-century Catholic immigration further complicated the picture. Almost all American religionists, however, saw themselves as independent agents, independent of government. In strictly legal terms, however, the Supreme Court and the religion clauses of the First Amendment do not begin to play a formal role in the defining of the accommodation of religion and politics until their application to the states in the mid-twentieth century through the incorporation of the clauses into the Fourteenth Amendment. Then began an experiment in the national regulation of religion that lasted less than half a century. Beginning with Cantwell (Cantwell v. U.S., 310 U.S. 296, 1940) and Everson (Everson v. Board of Education, 330 U.S. 1, 1947), the Supreme Court started sorting out Americans into religious and nonreligious, translating the intra-Protestant and Protestant-Catholic battles of the previous century into universal terms. It seems self-evident that in order to enforce laws guaranteeing religious freedom and guaranteeing disestablishment, as the United States does, one must first know what religion is. Or, rather, one must first be able to distinguish religion from nonreligion. Religious people and religious ideas and institutions must be separable from nonreli-

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gious people, ideas, and institutions. Otherwise the category is of no use to the law. Law would have no ability to take account of it. In most countries, there is a government office that is in charge of deciding what qualifies as religion, for legal purposes. Religions have to be organized and officially licensed in order to function. In many European countries, for example, that office is run by the national church, either de jure or de facto. Criteria for permission to function as a religion include longevity, number of adherents, fidelity to a creed, regular worship practices, alignment with an accepted set of moral practices, and a degree of patriotism. No such office exists in the United States. Indeed, most Americans, if they thought about it, would consider such an office to be unconstitutionaleven a betrayal of what religious freedom should be. Such an office does not exist in the United States not because religion in the United States is more freeall of these other countries are also constitutionally and legally committed to religious freedombut because U.S. religion is different. It is radically disestablished. In these other countries, religion is licensed and institutionalized and regulated and you can take it or leave it as a citizen (see, for example, Beckford 2005; Ferrari 1997). You can mostly believe whatever you want and partake of government monitored religion or not, as you choose. But managing religion is part of the explicit business of government. Americans, on the other hand, are in charge of organizing their own religious lives. All Americans. Religion is not a subject for authority above the level of the individualwhether by the state or the church. This is true across the political and theological spectrum. Since the very beginning in Massachusettsor Florida, or California, if you likeif you didnt like what the preacher said, you moved down the road and founded a new church. And so on and so on. And more and more so. Over and over again, litigation about religion affirms this bottom up principle. To achieve the legal status of a religion, individual sincerity is the only test. It is, in my view, difficult to overstate the significance of the voluntaryness of American religious participation and its overall effect on the phenomenology of U.S. religion.

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why do americans consistently report themselves as being reli gious when persons in other countries do not? In my view, the most persuasive explanation, borrowing from Jos Casanova, is a legal one (Casanova 1994). The legal disestablishment of religion. Americans have virtually never known an established church of the well-institutionalized European variety. Anti-clericalism of the sort that defines many European attitudes toward religion is almost entirely absent. Religious institutions have not long enjoyed either entrenched monopoly power and wealth or formal legal responsibility for education and charitable endeavors as they have in many other countries. And as the country has more and more acknowledged its religious diversity, and as equality has been more and more realizedfor African Americans in particular new groups have insisted that the relative freedom enjoyed by white Protestants be enjoyed by all persons. Catholics no longer feel that they belong to the parish geographically assigned to them or that they owe deference to Rome. Other religious communities form and fragment in similar ways. We not only have freedom from regulation by the state we also have freedom from regulation by the church. Authority, as with the state, is located in the people. We dont have a state. We also dont have a church. The relationship between government and religion is organized in other ways. This distinctive American way of church and state interaction did not come into being instantly. It has happened in fits and starts parallel with other changes in government (Howe 1965; Hamburger 2005; Gordon 2002) and the role of the courts has varied over time as well. We are arguably now entering a new phase in this process. After a 40- or 50-year period of activism, of judicially monitored separationism, in which the courts attempted to distinguish and regulate the boundary between church and state, the U.S. Supreme Court, over the last 25 years or so, has increasingly asserted its lack of a role in the formal management of religious life. Both in its acknowledgment of the impracticality of the project given the radical nature of disestablishment in the United States and because of the virtual disappearance of the motive provided by anti-Catholicism as a widespread social practice, the court

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has more and more gotten itself out of the business of deciding what counts as religion. One could point to various opinions of the Court as marking the beginning of this trend, but take Lynch v. Donnelly (Employment Division v. Smith, 494 U.S. 872, 1990), the crche case. The court held in Lynch, a case brought under the establishment clause, that it was not unconstitutional for the city of Pawtucket, Rhode Island, to erect a nativity scene as a part of its annual civic Christmas display. There were five opinions in the case displaying a range of theories of religion (Sullivan 1994). One could argue that one reason for the holding was that the court could not decide whether a nativity scene is religious or not, how one would know, or whether it mattered. How to decide between the wholesale early American Puritan rejection, even criminalization, of Christmas as a superstitious Roman and pagan innovation; twentieth-century Pawtucket Catholic popular sacramentalism that experienced the real presence in a representation of the incarnation of God on earth; and Victorian protestant bourgeois sentimental commercialism? Without a legally established religious authority, Christmas and the crche defeat all attempts at orthodox definition. Justice Sandra Day OConnors solution was to ignore the religious question and ask the political one. Was the city of Pawtucket sending a discriminatory message to a portion of its population by endorsing one version of what it is to be American? She thought not. Lynch was not really a religion case for her. In 1990, in Employment Division v. Smith, a free-exercise-clause case, the court held that persons with religious motivations could claim no special constitutional exemption from law because of their religious conscience (Employment Division v. Smith, 494 U.S. 872). Members of the Native American Church had claimed a constitutional right to ingest peyote, a cactus fruit with hallucinogenic properties, as a part of their religious rites, although such use was prohibited by Oregon laws regulating the use of narcotics. How is a court to decide fairly in the wild diversity of the U.S. religious landscape among those who claim a conscientious exemption from its many laws? And who could explain that if an exemption were granted it was then fair to apply those same laws to

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everyone else? On what constitutional basis can the state discriminate between the members of the Native American Church, a non-Christian group explicitly founded in the early twentieth century to institutionalize and take advantage of constitutional protection for Indian cultural practices, on the one hand, and those others, mostly non-Indians, who ingest peyote as a form of what they describe as spiritual recreation? Spiritual, they say, but not religious. Or even those whose use is purely recreational?

ongoing judicial efforts at such parsing of religious lives are fully on display in the history of the political campaign for and the subsequent enforcement of the Religious Freedom Restoration Act (22 U.S.C. 6401ff., 1999). RFRA was the result of a congressional effort to reverse the Smith decision, and, together with its offspring, the Religious Land Use and Institutionalized Persons Act (Religious Land Use and Institutionalized Persons Act, 42 U.S. Code 2000cc-1 et seq., 2000), continue to generate judicial efforts to locate religion. Since Lynch and Smith, however, the presence of religion in public life and the privileges to be accorded religious ways of being would increasingly be baldly governed by politics, not constitutional principles. While vestigial traces of the high separationism of the mid-twentieth century continue to haunt law in this area, the trend is unmistakable. Religion is not different, legally speaking. It is the legislature, not the Constitution, that properly determines its place. In the space opened up by the deconstitutionalization of law about religion in the United States, a new legal phenomenology of religion can be discernedand a new opportunity for regulation. No longer burdened with a Constitutional need to divide Americans into people of faith and people not of faith, or to discern the religiosity of particular practices, and dedicated to the fact that all people are created equal, U.S. law about religion has come to a crossroads. If the law cannot distinguish religion from nonreligion, are all Americans to be regarded as not religious or as religious? With no authority to make

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such distinctions, the legal answer was, in a very real sense, arbitrary. But the American way was clear. I think we have our answer in the success of the faith-based initiative. The Bush administration is widely assumed to have significantly favored evangelical Christian perspectives and organizations in its policies. A corollary of that assumption for some self-styled liberals was that regime change would return us to what they understood to be our natural secular (or at least, separatist) condition. Preliminary evidence suggests that the first is indeed the case (although the changes had been initiated during earlier Democratic administrations) and that the second is unlikely. Secularism is not our natural condition, as any American historian can tell you. A recent report on the State of the Law concerning the Presidents Faith-Based and Community Initiative, published by the well-respected and nonsectarian web-based reporter on the initiative, The Roundtable on Religion and Social Policy, summarized the changes that took place over the eight years of the Bush administration: At its core, the FBCI [Faith-Based and Community Initiative] guarantees a level playing field that allows FBOs [faithbased organizations] to compete for social welfare funding on equal terms with non-religious organizations. This guarantee is remarkable in two respects. First, it reflects a decisive shift in the law of the Constitutions Establishment Clause, away from a regime that excluded pervasively sectarian entities, and toward one that permits a far greater range of partnerships between government and FBOs. Second, the guarantee is remarkable because of the scope of administrative change it required. The prohibition on funding of pervasively sectarian organizations had been deeply imbedded in federal agency rules and practices, but the FBCI has succeeded in transforming that administrative structure to reflect the laws wider acceptance of public aid for FBOs (Lupu and Tuttle 2008: 11).

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The report goes on to detail how this transformation of government was accomplished. As with others of his policies, when President George W. Bush was unable politically to implement his vision through legislation, he turned to executive orders. The report continues: Very soon after he took office in January of 2001, President George W. Bush issued two Executive Orders that set in motion the Faith-Based and Community Initiative. These Orders established Centers for the FBCI in the White House and core federal agencies, and directed the agency centers to identify barriers that prevented faith-based and community organizations from competing on an equal basis for federal social welfare funding. A year later, following a comprehensive survey by the agency FBCI Centers, the President issued another Executive Order, directing federal agencies to remove such barriers and guarantee equal treatment for faith-based and community organizations in federal grants and contracts. By the end of 2004, virtually all federal agencies had complied with the Presidents directives. New regulations, covering the full range of federal social welfare funding programs, prohibited agencies from discriminating against FBOs based on their religious character, and ensured FBOs that they could retain their religious identity while providing publicly funded services (Lupu and Tuttle 2008: 13-4). While open legal issues remain, particularly with respect to the right of faith-based organizations to discriminate in hiring, there is no question that it is a remarkable accomplishment, one that would have seemed incredible to many First Amendment scholars 10 or 20 years ago. A parallel shift has occurred in the foreign policy arena with the embedding of religion in the State Department after the signing into

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law of the International Religious Freedom Act by President Clinton in 1998 (International Religious Freedom Act, 22 U.S.C. 6401ff., 1999). The act mandated the establishment of an Office of International Religious Freedom within the Department of State, headed by an ambassador-at-large who acts as the principal adviser to the president and secretary of state in matters concerning religious freedom abroad. IRFA also mandated the establishment of the independent, bipartisan United States Commission on International Religious Freedom and a Special Adviser on International Religious Freedom at the National Security Council. An annual report is produced by the State Department detailing the state of religious freedom in every country in the worldwith the exception of the United States. The president is required by the act to punish countries that are found not to be sufficiently free. Ten years later these policies reach deep into U.S. foreign policy at every level (see the website of the Office of International Religious Freedom of the United States Department of State, <http://www.state.gov/g/drl/irf/index.htm>). Where do President Barack Obama and the Democrats stand on these questions? After the 2004 election, Democrats were widely understood not to have gotten it right about the importance of religious values for Americans. Potential presidential candidates especially were supposed to learn how to talk about religion. Some tried and sounded awkward, but both Barack Obama and Hillary Clinton understood this need and both spoke naturally about their respect for religion and about their own religious commitments in their campaigns. Both embraced the notion that religion belongs back in politics. On July 1, 2008, presidential candidate Obama gave a major speech endorsing government partnership with faith-based organizations and promising to beef up President Bushs efforts with the creation of a new White House Council for Faith-Based and Neighborhood Partnerships. President Obama speaks often of his own religious commitments and has defended his opposition to gay marriage on religious grounds. When she accepted Obamas nomination as secretary of state, Hillary Clinton spoke of Americas faith in every persons God-given right to live up to his or her potential. Examples could be multiplied.

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Understanding Americans to be fundamentally religious is now once again deeply embedded in government and in our public culture. That is the default position. Not secularism. Chaplaincies are proliferating across the United States to serve Americans in the military, in hospitals, in colleges, in the workplaceand in crisis situations, especially since 9/11 and Hurricane Katrina. These chaplaincies are regulated in myriad ways by law, from the credentialing of ministry programs and the listing of religious groups as approved endorsing bodiesto the shaping of orthodox liberal theologies suitable for public settings by both government and private regulatory bodies such as insurance companies and certifying organizations. While President Obama is careful to speak always with respect for people who are not religiously identified, he seems to regard them as all in some sense faith-based or spiritual.

separationist ideology simply no longer has the purchase it once did in the United States, except perhaps in some academic contexts and for some minority groups. In part, this is so because separation is now understood to have been founded in an anti-Catholic bias that has largely lost its relevance. It is also so because of the political strength of conservative evangelical Christianity in the United States. Yet, something more fundamental is at work, in my view, a shift in the public understanding of what it means to say that humans are religiousa shift in religious anthropology. Religion is being naturalized. As it is being naturalized, it is becoming a part of the domain of government in new ways. There has been a remarkably broad embrace in the United States of the value of what are termed faith-based initiatives, at their most inclusively understood, as can be seen by the new administrations extension of the faith-based programs. One finds a new openness to the re-incorporation of the religious, or what is often termed the spiritual dimension of every human being, across the spectrum of U.S. government activity. In some senses, this phenomenon is a continuation of older forms of American religious practice, gathered together

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historically under ever-expanding forms of nondenominational parachurch Christianity, as well as persistent interest in natural religion and its various exotic relations. But universal religion is also taking new forms. The new openness to seeing people as naturally faith-based is enabled, I believe, by a convergence among a broad range of humanistic critiques of scientistic understandings of the person, social scientific and biological; social and political movements that originated in the mid-twentieth century; a global political consciousness that sees Europe rather than the United States as exceptional in this regard; and a contemporaneous shift in religious authority and anthropology from the church to the individual. The exclusivity of materialist/medicalized understandings of the entire range of human capabilities and experience, as well as ecclesiastical capacity to insist on orthodoxy and particularity, are both fast eroding in the face of these changes. And thus also the grounds of secular opposition. The descriptive divisions between the church and the state, and between persons of faith and persons not of faith, on which separation law depends, no longer makes sense. Such divisions can only be made on a doctrinal basis by established religious or legal authorities who define insiders and outsiders. Such authorities no longer exist in the United States. Virtually all Americans, however orthodox their asserted religious identities, Protestant or Catholic or Jewish or Muslim, or ?, claim the right to associate themselves with religious communitiesand religious ideas and practicesas they see fit, to define the terms of any such an association, to change their religious identities and associations at will, and to mix and match religious traditions. That right is understood to be authorized by political, legal, and theological narratives and texts. In theory, the high value placed today in the United States on choice reflected in this new assumption of religious authority includes the choice to be nonreligious. But, as a political matter, it is not understood as entirely optional simply to exempt oneself from what is seen by many across the ideological spectrum to be a necessary correction to the Enlightenment, a necessary component to being human. Atheists

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feel threatened. Religion today in the United States is a fragmented affair, highly resistant to fixed identities and associations, but it is also remarkably resilient. To be American is no longer to be Protestantbut hard-edged atheism is not really acceptableor even believable (Edgell 2007). You must be religious, but your religion can be whatever. Really whatever. Not just Protestant, Catholic, or Jewish. As long as you do not espouse terrorism or child abuse. Eisenhowers famous open embrace of religion as necessary for American national well-being is being reinvented and radicalized. I served as an expert witness in an establishment clause case several years ago (Americans United v. Prison Fellowship Ministries; Sullivan 2009). I testified to what I thought to be a fairly unremarkable opinion concerning an in-prison rehabilitation program, InnerChange Freedom Initiative, operated by Charles Colsons Prison Fellowship Ministries, an opinion that would be shared, I believed, by most other scholars of American religion. I gave the opinion that Prison Fellowship and InnerChange would be described by scholars as evangelical Christian in nature. Indeed, I believed that they would so regard themselves. I gave no opinion on the constitutional question before the Iowa court. Opinions on legal issues are usually reserved for the judge in American courts. In the district court, the defendants unsuccessfully tried to prevent my testifying by challenging my qualifications to be an expert under federal law. But, more significantly, they successfully, in the U.S. Court of Appeals for the Eighth Circuit, challenged the constitutionality of an American courts hearing from any expert in religion. The court of appeals said that the trial judge should not have relied on my expertise. They explained: It is well established, in numerous other contexts, that courts should refrain from trolling through a persons or institutions religious beliefs. . . . The district court abused its discretion, as the professors testimony is not relevant (Americans United v. Prison Fellowship Ministries, 2007: 7 n.2). Not relevant. Not that my academic credentials were inadequate or that my scholarly work was incompetent, but that my opinion was irrelevant. The court of appeals then went on to agree with the

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district court that the Iowa prison program was in fact an unconstitutional establishment of religion, purporting to find evidence of the religiousness of InnerChanges program in its own testimony, testimony that was understood to be self-evidently revealing as to its religious nature, needing no expert or judicial interpretation. With respect to the district courts admission of my testimony, the court of appeals concluded: However, in light of Prison Fellowship and InnerChanges sincere statements of their beliefs, this error is harmless. Religion is an entirely subjective matter. Its constitutional status is a matter of sincerity, not of objective content or form. The Eighth Circuit court is almost certainly wrong, as a matter of evidence law, concerning the legality of the trial judges admission of my testimony. District courts have wide latitude, particularly in trials without juries, as this one was, to admit expert testimony. The standard for the admissibility of expert testimony in federal courts is outlined in Rule 702 of the Federal Rules of Evidence: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The district court had explicitly found in its own opinion that my testimony met that standard. As for relevance, Rule 401 provides that Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. And Rule 402 announces the default position that All relevant evidence is admissible. Again, district court judges have wide

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latitude in determining relevance. Surely my testimony was at least minimally relevant to whether the InnerChange program was an establishment of religion, even if it was not dispositive. The court of appeals spoke for many Americans when it stated that my testimony was not relevant. The court regarded itselfand other U.S. courtsas entirely capable of determining whether or not a particular program is religious using their own lay reading of the sincerity of the witnesses before them. No experts required. Religion is not something that Americans regard as a matter of expertise. Religious expertise is a part of what we left behind when we came here. Religious expertise is a feature of the clerical establishments that we have abandoned. Academic religious expertise, particularly concerning the biblical texts, is what divided liberal and conservative religious Americans at the end of the nineteenth century. It is, by definition, not relevant to the establishment, or not, of religion. What is more important than the Eighth Circuits scorn for academic expertise in matters of religion, however, is how the defendants themselves understood their own right to self-definition. The defendants claimed the rightand they exercised this right often during the litigationnot only to define their location within the Christian spectrum themselves, but also to alternatively characterize their work as religious or secular, as they chose. They claimed to be both biblical and secular. Religious is a problematic term for them, as for many low church Protestants, as it smacks of outward show, of popery. The defendants are interested in inner transformation. Prison Fellowship Ministries claims to serve a secular public purposethe reduction of recidivismthrough the teaching of biblical values to prisoners in an in-prison residential program. While the district court judge described InnerChange Freedom Initiative as a form of Protestant monasticism, the defendants themselves disclaimed any intention to convert. Their purpose, they said, was the civilization of these men through the inculcation of universal values, values that are to be found in all traditions. They use the Bible and the life of Jesus to illustrate these values because that is who they are. They claim a consti-

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tutional right to do so. Who will tell them nay? Why should that not be called secular just as well as religious? They know that there are no neutral positions. All are ideologically interested. On what basis, then, can the courts distinguish what is religious from what is secular? In the United States, people increasingly decide that for themselves. The distinctiveness of this new U.S. religio-legal scene is particularly evident, I think, in the history of the implementation of International Religious Freedom Act. I recently heard a history of that act given by a member of the commission that oversees administration of that act by the State Department. We were told that increasingly American foreign policy with respect to religious freedom is focusing on freedom for religion and for religious institutions rather than freedom for individualson the understanding that preserving religion, and the morality that religion produces, requires something more than attending to individual conscience. It requires institutions. This is a strangely establishmentarian position for Americans to take. From the beginning, IRFA has attempted to project a version of the American myth of religious freedom outwards, demanding that the rest of the world conform to our understanding of ourselves as the inventors and preservers of religious freedom par excellence. Curiously, though, a gap has opened between the version of the myth we are offering for export, and the religious lives of most Americans. Freed from the domestic constraints of the Constitution and of politics, as in so many other areas Americans are promoting a version of the rule of law that establishes authority abroad, religious and otherwise, in ways unacceptable, even incomprehensible, at home, where antinomian religion continues to flourish in new guises, whether in city squares, sweat lodges, or prisons.
references

Asad, Talal. Formations of the Secular: Christianity, Islam, Modernity. Palo Alto: Stanford, 2003. Beckford, James A., Danile Joly, and Farhad Khosrokhavar. Muslims in Prison: Challenge and Chance in Britain and France. New York: Palgrave, 2005.

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Casanova, Jos. Public Religions in the Modern World. Chicago: University of Chicago Press, 1994. Davie, Grace. Europe: The Exceptional Case: Parameters of Faith in the Modern World. London: Darton, Longman and Todd, 2002. Edgell, Penny, Joseph Gerteis, and Douglas Hartmann. Atheists as Other: Moral Boundaries and Cultural Membership in American Society. American Sociological Review 71 (2006): 211-234. Ferrari, Silvio. The New Wine and the Old Cask. Tolerance, Religion, and Law in Contemporary Europe. Ratio Juris 10 (March 1997): 7589. Gordon, Sarah Barringer. The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 2002. Hamburger, Philip. Separation of Church and State. Cambridge: Harvard University Press, 2005. Herberg, Will. Protestant, Catholic, Jew: An Essay in American Religious Sociology. Chicago: University of Chicago Press, 1955. Howe, Mark deWolfe. The Garden and the Wilderness: Religion and Government in the United States. Chicago: University of Chicago Press, 1965. Lupu, Ira C., and Robert W. Tuttle. The State of the Law 2008: A Cumulative Report on Legal Developments Affecting Government Partnerships with Faith-Based Organizations. Washington, D.C. The Roundtable on Religion and Social Welfare Policy, 2008. Norris, Pippa, and Ronald Inglehardt. Sacred and Secular: Reexamining the Secularization Thesis. Cambridge: Cambridge University Press, 2004. Schlegel, John Henry. Drawing Back From the Abyss, or Lessons Learned From Count von Count. The Crit 1 (Spring 2008): 16-20. Sullivan, Winnifred Fallers. Paying the Words Extra: Religious Discourse in the Supreme Court of the United States. Cambridge: Harvard, 1994. . Prison Religion: Faith-Based Reform and the Constitution. Princeton: Princeton, 2009.

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