"The Religious Life of Legal Death"

Nominated for best paper at the Western Political Science Association. Manuscript available upon request.

In this article, I argue that the assumption that the death penalty is a "secular" method of state-sponsored retribution not only misunderstands how punishment and religion are historically, theoretically, and discursively intertwined, but also presumes that efforts to "restore" religion to the death chamber will always operate in freedom-enhancing ways.  Through an engagement with Ramirez v. Collier - in which a condemned individual, John Ramirez, successfully petitions to have his spiritual advisor pray over him in the moment of his death - I argue that the state, in its procedural and penological posture, harnesses the redemptive promises of religion for retributive ends and thereby entrenches and intensifies the felt quality of embodied violence at the moment of execution.  To make this argument, I draw from texts that move across time and discipline, from gaols to the gallows, such that Ramirez emerges not necessarily as a figure whose legal triumph secures his independence from the punitive power of the state, but rather as an individual who, in appealing to the ideals of free exercise, recalls and reconstitutes anew the means by which religion readies the body politic and the condemned for retribution.  Put slightly differently, on my reading, Ramirez (the ruling) and Ramirez (the condemned) lay bare how jails, prisons, and death rows are places where the productive relationship between the state and religion cannot be evaded, as even when religion appears to be absent, the sacred nonetheless haunts all those who live, work, and die there.

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In the first section, I construct, critique, and reimagine the discursive framework within which cases like Ramirez are often understood.  More precisely, I draw from historians and theorists alike to argue that, in contrast to narratives that suggest that the death penalty became a site of “disenchantment” as the Enlightenment project sought to replace religion with reason in service of legitimating the power of nascent liberal democratic states to punish, it was not that the language of religion was removed from corporal and capital punishment altogether, but rather that it was reconstituted as a novel grammar of penal control.  This grammar, I further argue, shaped both the physical structure and metaphysical power of the prison and its death row, even as it served to insulate the state from charges of outsized violence.  In the second section, I bring this argument to bear on the procedural pathways that characterize the practice of contemporary capital punishment and condition the role of the spiritual advisor.  I trace, through an engagement with archival accounts of chaplains embedded within The Walls as well as the ephemera of Ramirez, how this grammar infuses the condemned with an unreal agency meant to justify the ultimate act of state-endorsed retribution – and permits it to persist well into a century marked by calls for its abolition.  In the third, and final, section, I turn my attention towards the future religious life of legal death.  I contend that, as cracks in the procedural mechanisms of the contemporary death penalty continue to emerge, what was a latent grammar will become our dominant language of punishment.  The future of the death penalty, I conclude, might well be one that rebuilds the practice of gallows-side salvation and expands the theater of retribution in the name of redemption.

"Toleration, Not Coercion?  Reading Locke after Masterpiece Cakeshop and 303 Creative"

Revised and resubmitted.  Manuscript available upon request.

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On the last day of June 2023, Justice Neil Gorsuch delivered the majority opinion in 303 Creative v. Elenis from the bench of the United States Supreme Court. This case concerned whether Lorie Smith, the founder and sole proprietor of a Colorado-based website design company, could deny service to queer couples on the basis of her sincere religious beliefs.  For while Colorado argued that any proscriptions on the "full and equal enjoyment of goods and services" because of an individual's "sexual orientation, gender identity, or gender performance" constituted a violation of its public accommodation laws, Smith and her counsel countered that forced compliance with such laws - particularly for creative professionals, whose custom wares ought to be understood as an extension of their interior religious lives - amounted to an unconstitutional act of compelled speech.  To be obliged to create wedding websites for same-sex or gender non-conforming couples, so the argument went, was tantamount to harnessing Smith's artistic talents to perform a state-required endorsement of queer life, a performance that would, in turn, violate her "deeply-held Christian values" that the rites of marriage were reserved "for one man and one woman."  Smith maintained, in other words, that her First Amendment rights - to speech, to creative license, to free religious expression - superseded the rights of equal protection in an economic marketplace.  In a bitterly divided decision, the Court agreed, leaving Gorsuch to announce before a crowded courtroom: "Abiding by the First Amendment means all of us will encounter ideas we consider deeply misguided.  But tolerance, not coercion, is our nation's answer."

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In this article, I interrogate the work that "tolerance, not coercion" does for not only the decision in 303 Creative, but also Masterpiece Cakeshop v. Colorado Civil Rights Commission - a case that, under the guidance of Justice Anthony Kennedy, used the same linguistic tic.  Through an engagement with the discrete elements of the legal archive in both 303 Creative and Masterpiece Cakeshop, I argue that this case does not expand the possibilities of religious freedom; I determine that it instead expands the private and interpersonal regulatory regime through the entrenchment of a marketplace predicated on the ideals of Protestant Christian ideology.  This argument unfolds over the course of three sections.  The first section situates this article within the emerging bodies of scholarship on these cases, while the second brings those bodies of scholarship to bear on the language used by Laurie Smith and Jack Phillips to describe their understandings of their labor; in doing so, I demonstrate that there is something more at work in this case than the frameworks of either anti-discrimination law or First Amendment jurisprudence can capture.  The third section turns more fully to the administrative proceedings that shaped the outcome of these cases, such that it is possible to read both Kennedy and Gorsuch's invocations of religious toleration as a desire to contour the character of the public sphere - a contouring that can trace its origins to John Locke's A Letter Concerning Toleration, a text that I argue crafts a Protestantly-inflected, Foucauldian-like constitutive power that wends and winds its way through daily life.  Thus, as I argue in the fourth and final section, the impulse to reach for toleration does more harm than good: rather than create the conditions that foster an inclusive public sphere for all persons, it embeds the precepts of religion into private and public encounters.  This embeddedness, I conclude, will shape the future of religious freedom jurisprudence for years to come.

"Theorizing Employment Division v. Smith: The Affective Power of the Legal Regulation of Religion"

Published in Law, Culture, and the Humanities. Read the article here.

This article interrogates, first, Justice Antonin Scalia’s assertion in Employment Division v. Smith that the law must uphold the belief-action distinction in order to preserve democratic norms and, second, the affect that this distinction had on Alfred Smith’s relationship with his faith.  I argue that as Smith responded to the law’s repeated requests for justification as to why his religious convictions ought to exempt him from the criminal regulation of peyote, he experienced a profound sense of legal, political, and spiritual disempowerment – a disempowerment compounded by the erasure of the complexities of his faith in both the decision and aftermath of Smith.  By way of making this argument, I bring Scalia, Smith, and Smith into sustained conversation with an unlikely interlocutor: Jürgen Habermas.  

As one of the leading legal and political theorists of religion in the late modern moment, Habermas articulates a vision of democratic life that at once venerates public religious expression and insulates law- and policy-making institutions from faith-based influence.  Habermas’s vision is often characterized by contemporary political theorists and legal academics as the ideal to which all religiously plural democracies should aspire, but when his argument is considered alongside the experiences of Smith before the Court as well as Smith’s position as an Indigenous person, a powerful disjuncture between theory and practice emerges.  For although Habermas encourages religious individuals to adopt an epistemic stance of public reason and to engage in cooperative acts of translation in order to settle collaboratively the appropriate limits of religion as well as the law, I argue that, when applied to Smith, these methods of discursive engagement work to not only underscore the absolute primacy of the law over religion, but also to undercut Smith’s own understanding of his faith.  I ultimately suggest that this mode of inquiry – that is to say, infusing theory with nuances gleamed from the everyday legal lives of ordinary individuals – generates new pathways through which to ameliorate latent social, legal, and political harms.  ​

"The Cruel Optimism of Religious Freedom in the Late Carceral State," with P. Kaufman

In preparation.  Draft manuscript available upon request.

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In this paper, we examine the role of religion in increasing the felt nature of retribution in the carceral state.  More precisely, we interrogate how the rhetoric of “religious freedom” softens the shortcomings of the state in providing rehabilitative support for those it deems guilty of criminal wrongdoing even as it authorizes and enacts forms of punishment that may otherwise run counter to democratic ideals.  This argument emerges from close readings of first-person interviews conducted with prison chaplains and formerly incarcerated persons, which serve as sites within which to reconstruct a phenomenology of religiously-inflected retribution; these sites, on our reading, demonstrate the myriad ways in which religion serves not as a mechanism for the achievement of freedom, but rather as an everyday tool through which the carceral subject is psychically constituted, subtly surveilled, and physically subordinated.  We conclude that the state, in harnessing the redemptive ideals of prisoners’ religious beliefs and promulgating them through its religious programming, enacts a peculiar form of material and metaphysical violence on those within its care – even as it cultivates, in the words of Lauren Berlant, a cruel sense of optimism for a freer future.

"The Case for Care"

In preparation.  Draft manuscript available upon request.

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In this article, I draw from my experiences co-leading the Dialogues Across Differences project at Dickinson College to suggest that dialogic techniques, when used in undergraduate liberal arts classrooms, can foster a learning environment that empowers students to 1) assess critically the language that shapes our collective lives and 2) expand the concept of who can be understood as valued contributors to democratic deliberation.  I further argue that dialogue can be a vector for greater diversity, equity, and inclusion in justice-oriented conversations on college campuses, although it must be done in a way that accounts for historical and contemporary lived experiences of harm, trauma, and exclusion.  I conclude that dialogically-driven pedagogy can dismantle hierarchical power within and among participants in the classroom, which could influence students' future participation within democratic life.