An Atheist and “The Impossibility of Religious Freedom”

Winnifred Fallers Sullivan

The Impossibility of Religious Freedom

(Princeton: Princeton University Press, 2005)

-Although six years old now, this book covers issues pertinent to the present time-

The Impossibility of Religious Freedom is a book written by Winnifred Fallers Sullivan, director of the Law and Religion program at University of Buffalo Law School (State University of New York), that examines the ways in which religious beliefs and practices relate to American law, particularly in the case of Warner vs. Boca Raton (1999).  According to Dr. Sullivan, who was called in as an expert witness on religion, Warner vs. Boca Raton “tells the story of the impossibility of religious freedom today.”[1] She considers this trial a “case study for how or whether…law anywhere today can do what it is being asked to do: guarantee freedom of religion.”[2] Warner vs. Boca Raton was a class action lawsuit brought by the ACLU[3] against the City of Boca Raton.  “The Warner plaintiffs,” Sullivan says, “claimed that the Boca Raton Cemetery Regulations, both as written and enforced, were an unconstitutional and illegal burden on the exercise of religion.”[4] These regulations limited cemetery memorials to that which “does not extend vertically above the ground,”[5] which opposed the “lived religion” of those who adorned their vertical memorials with various religiously based decorations and material symbols.

What counts as “religion” in a legal setting is left largely up to the opinions and definitions of the judge presiding, which was, in this case, the Honorable Kenneth L. Ryskamp, U.S. District Judge for Southern District of Florida.  According to Sullivan’s account, Judge Ryskamp “felt no hesitation in openly preferring his own reading of the Hebrew Bible to that of the rabbi.”  “He also felt,” according to Sullivan, “no compunction about preferring his own version of church history to that of the church historian.  Religion appeared to be judged in his courtroom according to the fabled ‘I know it when I see it’ standard.”[6] The power of a Federal Judge, in cases like this and many others, far exceeds the power of popular opinion and academics alike, showing how the final arbiter over what counts as “religion” is the judge his/herself.

Sullivan’s answer to “how or whether…law…can…guarantee freedom of religion” comes in a peculiar and unique form when she says that “forsaking religious freedom as a legally enforceable right might enable greater equality among persons and greater clarity and self-determination for religious individuals and communities.”[7] She also puts it as the notion that “legal protection for religion is certainly theoretically incoherent and possibly unconstitutional.”[8] The case in question, however, largely hinged on legal protection from “undue burden” imposed on religious persons from the State.  Judge Ryskamp had to decide if the newly passed Florida Religious Freedom Restoration Act (the Florida RFA), along with prior State laws and the U.S. Constitution, applied to this case, and if so, to what extent.

In chapter two, Sullivan examines the testimony of the plaintiffs, and in chapter three she examines the testimony of other witnesses, but for brevity’s sake I will not cover these chapters.  Chapter four begins with the closing arguments of the attorneys and Judge Ryskamp’s decision.  The City Attorney, Bruce Rogow, closed by arguing that if every person were allowed to decorate their cemetery plots, in the spirit of pluralism, it would result in “cemetery anarchy.”[9] Judge Ryskamp’s decision was made on the fact that the plaintiffs did not own the plot of land in the cemetery.  He said, “I think some of them [the plaintiffs] think they own that little piece of land.  And they don’t.  They don’t own that piece of land. They’re not paying taxes on it.”[10] Basically, since cemeteries do not constitute a “public fora,” that is, a publicly owned land where private citizens can assemble and express themselves, the vertical grave memorials were considered a violation.

Sullivan thinks this shows just how misunderstood religion is in the legal system.  Her argument is that “law cannot possibly get it [religion] right” and that “if by law, we mean statutes and constitutions—the positivist secular laws of states and of the international community—then legally encompassing the religious ways of people in an intensely pluralist society is most likely impossible.”[11] In my opinion, Warner vs. Boca Raton has largely to do with the privatization of religious belief and the fact of State owned property.  It is exactly because of social disharmony and the impossibility of religious freedom mentioned by Sullivan, that we need secular courts, even if they are not the finest arbiters on matters of religion.  To me, you either allow every person the right to express themselves on public or State owned property, or you allow no one to.

One of the main arguments in Sullivan’s book is that the relationship between law and religion is paradoxical.  It is paradoxical because the State arbitrarily defines what counts as “religion” and what does not.  Since “religion” has no essential definition, given our radically pluralistic society, it is unwise to act as if the relationship between “religion” and law is straightforward and clear-cut.  “Religion,” Sullivan says, “can no longer be coherently defined for purposes of American law.”[12] This makes for the practical impossibility of religious freedom. What Sullivan’s book does show is that attorneys, judges, and other legal officials, are not scholars in religious studies.  It reveals the tensions and confusions that exist in courtrooms when the subject matter is related to, or directly focused on, religion.


[1] Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2005), 2

[2] Ibid, 3

[3] This was considered an interesting move since, as Sullivan says about the ACLU, “they are torn between a fear of the specter of established religion and a genuine desire to fight discrimination and preserve individual liberty.”  33.

[4] Ibid, 22

[5] Ibid, 17

[6] Ibid, 6

[7] Ibid, 8

[8] Ibid, 10

[9] Ibid, 89

[10] Ibid, 91

[11] Ibid, 138

[12] Ibid, 150