Previous scholarship has aptly identified the ways in which US religious freedom laws fail oppressed and marginalized religious communities. Winnifred Sullivan, for example, shows in The Impossibility of Religious Freedom the ways in which religious freedom laws position lawyers, judges, and religious leaders as authorities on not just how religious freedom laws should apply but also the very question of what religion itself even is. As she notes, this is a natural consequence of thinking religion in the law: the law cannot protect that which it does not define. And while I agree with Sullivan that “the law probably cannot get religion right,”[i] I think this statement may locate the problem in the wrong place. For one, the law cannot get anything right: the law paints a technicolor world in grayscale. And while it may be able to get some things more right than others, religion is different in degree, not kind from other domains of culture the law seeks to “get right.” And two, this idea that the law cannot get religion right, especially when taken as a unique case, leads to Sullivan’s ultimate solution: abandoning the protection of religious freedom under the law, leaving it to the vagaries of the protections afforded by other First Amendment protections like speech, press, and assembly.[ii] My question, though, is why we would think religious others will be any better protected by other legal constructs that are equally based in the specific, Protestantized conception of liberalism at the foundation of US law.
My contention, then, is that locating the problem in religious freedom laws specifically treats a symptom, not the infection that causes it. The infection that I identify I term “obsessive liberalism.” Obsessive liberalism, as I define it, is a recalcitrant set of beliefs. One, that there exists a universal liberal subject. Two, that all liberal subjects are equal before the law and ought to have the exact same rights. Three, that rights can only derive from a liberal subject. And four, that the solution to liberalism’s problems is always more liberalism. An obsessively liberal framework, moreover, preferences members of the religious mainstream–even worse, it does so insidiously by protecting “equal rights”: a system that imagines there is one universal subject, here the liberal subject, will always envision the oppressor when imagining that universal subject, obfuscating the reality that not all subjects stand before the law on equal footing. In the case of religious freedom, any conceptions and practices of a religion will be protected in direct proportion to their similarity to those of the oppressor class.
One need only look to recent US Supreme Court cases like Students for Fair Admissions v. Harvard (2023) or a whole host of recent Executive Orders issued by the Trump administration to see the weaponization of obsessive liberalism in favor of the majority: when all actors are seen as equal before the law and entitled to exactly equal rights, then equity becomes illegal and the privileges of the majority are loosed. Indeed, neoliberals internationally are pursuing similar goals: the recent attempts to pass the so-called Treaty Principles Bill in New Zealand nearly eviscerated the special rights afforded the Māori peoples by the Treaty of Waitangi. As I will show via North American Native peoples, it is precisely the admission that certain individuals and groups have and need special rights that can correct for the protestantized biases of US religious freedom laws and make possible Native–and otherwise othered–religions on their own terms.
To that end, I start from Michael McNally’s concept of religious sovereignty: “Religious sovereignty… is not a claim for the collective autonomy of any religious group but is tailored to the special legal status and nation-to-nation relationship between Native nations and the United States.”[iii] A move in this direction has two benefits. For one, it refuses obsessive liberalism’s stubborn twinned contentions that rights arise from the individual and that all individuals (or, here, groups) must or even ought to have the same rights. Two, it leverages existing settler law against itself: arising out of the so-called Marshall Trilogy of SCOTUS cases and reaffirmed repeatedly since, US settler law has acknowledged the existence of state-to-state, albeit parent-state to ward-state, relationships.
Part of the problem with legal claims made by Native Americans as US citizens is that they return us to the model of the liberal subject: under US law, individuals can bear property rights, Exercise rights, speech rights, etc. As McNally shows elsewhere, this makes claims that are legible within Native religious worldviews illegible under US law: “The [Ninth Circuit] ruled [in Navajo Nation v. U.S. Forest Service] that the spraying of treated wastewater to make artificial snow for recreational skiing on the San Francisco Peaks, a holy mountain for the Navajo Nation, Hopi Tribe, and four other litigating Tribes, did not ‘substantial[ly] burden’ Native religious exercise, but merely diminished Native ‘spiritual fulfillment’ on the sacred mountain.”[iv] We see here how US courts both reduce religion to “spiritual fulfillment” (the understanding of the oppressor class) and hinge their ruling on the individual exercise rights of Navajo appellants. These cases are typically doomed to fail, to be clear, because they rely upon settler religious and legal logics that imagine rights to spring from the individual and religion to be seated in so-called “spiritual fulfillment.” That the mountain itself is sacred and a subject that bears rights to protection–indeed, that its health is essential to the survival of humanity–can never be thinkable under US law, but it is thinkable that the Navajo Nation, granted religious sovereignty, could leverage its stewardship rights as a nation bearing a sovereignty not limited by US law or its animating logics. This paper, then will explore such new horizons for US religious freedom laws.
[i] Sullivan, The Impossibility of Religious Freedom, 138.
[ii] Sullivan, 149–50.
[iii] McNally, Defend the Sacred: Native American Religious Freedom beyond the First Amendment, 21.
[iv] McNally, “The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated,” 399.
This paper argues that, under what I call "obsessive liberalism," religious practices will be protected in proportion to their perceived similarity to those of the mainstream. Obsessive liberalism, I argue, imagines a universal liberal subject, from whom all rights of the individual and group derive and who ought to hold rights exactly equal to all other liberal subjects. Under obsessive liberalism, moreover, the solution to liberalism's problems is, always, more liberalism. Identifying examples of obsessive liberalism in the extant literature, this paper seeks after a framework based in dual values of equity and, in some cases, of rights springing from peoples, not from the individual liberal subjects that make them up. In either case, such a framework holds the potential to make possible the cognizability of non-protestantized religious practices and beliefs under the law, leaning in particular upon the example of Native peoples living under US settler law.