Landscapes of the Secular: Law, Religion, and American Sacred Space 9780226376806

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Landscapes of the Secular

Landscapes of the Secular Law, Religion, and American Sacred Space

Nicolas Howe

The University of Chicago Press Chicago and London

Nicolas Howe is assistant professor of environmental studies at Williams College. The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2016 by The University of Chicago All rights reserved. Published 2016. Printed in the United States of America 25 24 23 22 21 20 19 18 17 16  1 2 3 4 5 ISBN-­13: 978-­0-­226-­37677-­6 (cloth) ISBN-­13: 978-­0-­226-­37680-­6 (e-­book) DOI: 10.7208/chicago/9780226376806.001.0001 Chapter 3 has been revised and expanded from a previously published article by Nicolas Howe, “Thou Shalt Not Misinterpret: Landscape as Legal Performance,” Annals of the Association of American Geographers, April 15, 2008, reprinted by permission of the publisher (Taylor & Francis Ltd, http://​www​.tandfonline​.com) and the Association of American Geographers, http://​www​.aag​.org. Library of Congress Cataloging-in-Publication Data Names: Howe, Nicolas C., author. Title: Landscapes of the secular : law, religion, and American sacred space / Nicolas Howe. Description: Chicago ; London : The University of Chicago Press, 2016. | Includes bibliographical references and index. Identifiers: LCCN 2015039771| ISBN 9780226376776 (cloth : alk. paper) | ISBN 9780226376806 (e-book) Subjects: LCSH: Religion and state—United States. | Religion and law—United States. | Secularism—United States. | Cultural landscapes—United States. | Landscapes—Religious aspects. | Environmentalism—Religious aspects. | Church and state—United States. Classification: LCC BL65.S8 H69 2016 | DDC 322/.10973—dc23 LC record available at http://lccn.loc.gov/2015039771 ♾ This paper meets the requirements of ANSI/NISO Z39.48-­1992 (Permanence of Paper).

Contents

Preface  vii

1 2 3 4 5 6

Landscapes of Secular Law Church, State, and the Tyranny of Feelings Performing the Constitutional Landscape The Spiritual Gaze Sanctity, If You Will Looking Askance at the Sacred Acknowledgments  167 Notes  169 Bibliography  199 Index  223

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1 23 53 79 117 153

Preface

THE CROSS ON SUNRISE ROCK

On a small granite outcropping in California’s Mojave National Preserve, next to a blacktop secondary road about seventy-­five miles southwest of Las Vegas, a plywood box stood atop a metal post (fig. 1). The box concealed a cross. The cross, made out of white, concrete-­filled pipes, stood somewhere between five and eight feet tall and was bolted to the rock.1 Beer cans and charred sticks scattered around the outcropping, known locally as Sunrise Rock, suggested the presence of campsites. The nearest highway, Interstate 15, lay roughly eleven miles to the north. A ghost town, Cima, lay two miles to the south. Driving, one could see the boxed cross from a hundred yards or so, framed by the scraggy shoulders of Kessler Peak. On an August morning in 2008, the temperature already nearing 100, no cars passed for an hour. Amid the flotsam and jetsam of desert civilization, the box could have been easily missed or mistaken for a derelict sign. It certainly did not loom. Nothing looms here but mountains and sky. Over some, however, the cross did loom. Thus the box. Six years earlier, a federal judge had ordered the National Park Service to convii

viii Preface

Figure 1. The Mojave Memorial Cross. Photo by author.

ceal the cross until a lawsuit to uproot it could work its way through the courts. First they used a tarp, secured at the foot of the cross by a chain and padlock. Vandals destroyed the tarp, so they encased it in wood. “It looked like a big Popsicle,” the park superintendent joked.2 Others were less amused. For those who knew its troubled history, the box did not so much conceal the cross as draw attention to its concealment, like pants on piano legs. Until its fate was decided, the cross would live as a cross. Before its covering, the cross had stood in almost total obscurity (and in sequent incarnations) for close to seventy years. In 1934 the Death Valley chapter of the Veterans of Foreign Wars (VFW) is said to have erected it as an unofficial memorial to soldiers who had died in World War I. As early as 1935, local residents began to hold Easter sunrise services at the cross, a practice that continued intermittently throughout the rest of the century. According to the Park Service, a small sign used to mark the site as a memorial, but it disappeared long ago. The cross had been torn down, vandalized, and replaced several times. Since the early 1980s, a nearby resident, Henry Sandoz, had guarded it. Sandoz and his wife, Wanda, inherited this responsibility from their friend John Riley Bembry, a World War I medic who had helped erect the cross and cared for it

Preface ix

over the years.3 Sandoz, who was interviewed, filmed, and photographed many times after the legal battle began, was a plainspoken man with a white handlebar mustache and a black cowboy hat. He erected the present cross on Palm Sunday 1998. Afterward, he gathered with family and friends to grill hotdogs at the foot of Sunrise Rock. Fighting began the following year. Out of the blue, someone calling himself Sherpa San Harold Horpa of Jensen, Utah, wrote to Park Superintendent Mary Martin requesting permission to erect a dome-­shaped Buddhist shrine, or stupa, next to the “tasteful cross that stands on [the] small hill.” He specified that the stupa would be “equal in size, color, material and taste to the cross.” It later emerged that Sherpa San Harold Horpa was an alias for Herman R. Hoops, a retired Park Service employee. He and his friend Frank Buono, a former assistant superintendent of the preserve and environmental activist, had hatched the stupa plan to test the Park Service’s policy on the public display of religious symbols. Martin denied Hoops’s request but also announced that the Service would remove the cross. Her employees rebelled and local residents protested. Christian activists from around the country called it an affront to their faith. Veterans called it a slap in the face. Politicians intervened. The ACLU caught wind of the fracas and threatened to sue, and Congress responded by cutting off funds for the cross’s removal. Then, three months after the terrorist attacks of September 11, 2001, Congress buried a law designating the cross as a national World War I memorial in a defense bill. The ACLU took Buono’s case to court. Once an obscure roadside curiosity, the cross quickly became a cause.4 Like many church-­state activists before him, Buono—who now lived in Oregon—invoked the Establishment Clause of the First Amendment, which bars Congress from making laws “respecting an establishment of religion.” Joining him as co-­plaintiff was Allen Schwarz, a decorated veteran and retired high school teacher active in local and state Jewish veterans’ affairs. Schwarz, who died during the appeals process, told a reporter that the cross did not honor the 3,000 Jewish soldiers who died in World War I. He said, “By putting up a Christian cross, you have left out Moslems [sic], Jews. . . . You’re saying they don’t exist. That’s an affront to me.”5 By permitting the cross to be displayed in the preserve, Buono and Schwartz claimed, the government had not just endorsed Christianity. It had injured them personally. At first, the court agreed. “There is no question based on the uncontroverted facts that both Buono and Schwartz were harmed by being subjected to an unwelcome religious display, namely the cross,” wrote Federal District Judge

x Preface

Robert J. Timlin. “Each Plaintiff came into a direct and unwelcome contact with the cross. Each was offended by its presence, and each will continue to be offended by its presence on subsequent, imminent trips by them to or near the site of the cross.” Noting pointedly that Buono is a “practicing Roman Catholic” who is “deeply offended by the cross display on public land in an area that is not open to others to put up whatever symbols they choose,” Timlin ruled that the cross clearly violated the Constitution and had to come down.6 Undeterred, Congress passed a law to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value, donated by the Sandozes. The district court blocked the transfer, and a court of appeals affirmed its decision, although a group of five judges dissented, saying, “the lack of any challenge to the Sunrise Rock memorial for seven decades surely demonstrates that the public understands and accepts its secular commemorative purpose.”7 Or, as a spokesperson for the American Legion put it, apparently without irony, “Opponents call it a cross. But it really is a memorial to World War I veterans.”8 Petitioned by the George W. Bush administration almost a decade after the trouble began, the Supreme Court decided to intervene. With the land swap, the case, Salazar v. Buono, had grown legally tortuous.9 But at its heart were two basic questions: what kind of thing was the cross, and what had it done to Buono? The government (represented by Solicitor General and soon-­to-­be Supreme Court Justice Elena Kagan) claimed that the cross was a secular symbol of military sacrifice. It also argued that Buono lacked standing to sue because he had not suffered a concrete, personalized injury from viewing the cross. Instead, the government claimed, he objected to it on abstract, “ideological” grounds. As a Catholic who was offended not by “the cross itself ” but by the fact that others were prevented from displaying religious symbols in the same place, Buono could not have suffered the kind of direct “spiritual injury” that the First Amendment was supposedly designed to prevent. Buono’s conscience simply had not been violated. “The government did not require [Buono] to drive along a different route when he visits the Preserve,” its lawyers reasoned; “[he] made that decision on his own. And such ‘self-­inflicted’ injuries do not establish standing.”10 A 2009 PBS interview cast a different light on Buono’s grievance. “What really disturbs me is the argument that somehow the cross is a secular symbol,” Buono said, the television camera lingering on the crucifixes and Catholic icons adorning his home:

Preface xi

I can’t think of anything more offensive to a Christian, to a Catholic: that the cross is a secular symbol. They say, well, it’s a secular symbol of death and sacrifice, and I say, well, only to the extent that it symbolizes the death and sacrifices of Jesus Christ. That is why the cross is a symbol of death and sacrifice, and believe me, I think to a Muslim, to a Jew, to a Hindu, to a Buddhist the cross is no such symbol of death and sacrifice.11

But as for whether an occasional passerby could actually be injured by looking at a small cross in the middle of the desert, Buono seemed to prevaricate: Whether I’m 500 miles away or five feet away from it, the fact of the matter is that that land is land that I own, that’s land that you own; that’s federal public land. It belongs to everyone, and so it matters to me that the lands that are held in common by the United States do not become the venues for sectarian religious expressions, even of my own religious expressions.12

Sandoz, on the other hand, seemed simply bemused. “It shouldn’t mean no more than a memorial to the veterans,” he told PBS. Like a roadside memorial, the cross was “saying, well, somebody died there. That’s the meaning I think most people have out of it, or should have.”13 To establish standing, the ACLU claimed that their client had been “subjected to unwelcome exposure” to the cross and would “incur burdens to avoid exposure to it in the future.” Comparing his situation to that of students forced to read the Bible in public schools or listen to Christian prayers at graduation ceremonies, they stressed that Buono was offended by the government’s implicit Christian favoritism, not by the lack of additional symbols at Sunrise Rock. That Buono was himself Christian made no difference. They warned further that courts should not be in the theologically perilous business of distinguishing between “truly religious” and “merely ideological” motivations. What mattered was how such a cross, standing alone on federal land, would be interpreted by any reasonable person, regardless of that person’s faith.14 Sensing the likelihood of a landmark decision on religious freedom, interest groups and legal activists from across the church-­state spectrum jumped into the fray. Religious conservatives hoped the Court’s conservative majority, led by recently appointed Chief Justice John Roberts, would slam the door once and for all on “symbolic display” suits like Buono’s, which had been reaching

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federal courts regularly since the early 1980s. Following the government’s lead, they focused in their amicus briefs on the pivotal question of constitutional “standing”—put simply, a plaintiff’s ability to show that he has suffered a concrete injury that was caused by the illegality about which he is complaining and is redressable by the court. Representing the American Legion of California, lawyers for the Alliance Defense Fund (ADF), a powerful Christian Right counterpart to the ACLU, complained of “delicate plaintiffs with eggshell sensitivities—who claim deep offense at the perceived acknowledgement of any beliefs that conflict with their own—[and who] then seek court orders censoring the religious display, as a type of heckler’s veto.”15 The Fidelis Center for Law and Policy belittled Buono’s “subjective, psychological dismay.”16 Again and again, the word “offended” was emphasized, often in quotation marks. For many of these groups, Buono’s suit amounted to a dangerous corruption of constitutional principles. Freedom of religion did not mean freedom from offense. Voicing a common conservative plea, a group of state attorney generals asked the Court to draw a clear and permanent line between mere religious “endorsement” and true “coercion.”17 It was a line that conservative activists had been itching to draw for years. These “eggshell sensitivities” were also portrayed in a more sinister light. Attacking the cross, the government’s supporters wrote, meant attacking the military and the “Christian heritage” of which it was a part. On this view, it was dissenters like Buono who were inflicting real spiritual injury. “While the Ninth Circuit’s flawed opinion gave the plaintiff in this case his day in court,” the ADF wrote, “the fallen soldier’s mother who is deeply offended by the plywood box that now hides the veterans’ memorial from public view has no similar legal recourse.”18 Should the Court side with Buono, they and many others asked, what then would become of the Argonne Cross in Arlington National Cemetery, or of similar crosses throughout the country? If Buono should win, the VFW warned, we face the “removal, defacement, or destruction of countless cherished memorials across the Nation.”19 To underscore this danger, the conservative Christian Thomas More Law Center submitted stand-­alone photographs of military funerals, including an image of a woman weeping over a casket. Faces, not crosses, fill each frame. Naturally, Buono’s defenders dismissed the notion that a Christian cross could ever be seen as a nonsectarian, secular symbol. For them, as for their adversaries, the key concept was “injury.” What harm could a cross inflict? “Government-­sponsored religious symbols are potent forms of speech that

Preface xiii

can have real, palpable effects on people who are subjected to them,” answered Americans United for the Separation of Church and State (AU) and the Anti-­ Defamation League (ADL): The harm from them is not that they evoke mere distaste, displeasure, or even disgust. It is that they deprive citizens of the use and enjoyment of public lands, because using a public facility where the government has chosen to erect a monument to one faith stigmatizes nonadherents as second-­class citizens, while demeaning the faith of adherents by coopting what is sacred.20

As evidence, AU and the ADL pointed to psychological studies showing that exposure to religious symbols can have measurable effects on behavior. No matter how inconspicuous it may be, they argued, a cross “bombards the observer with its message visually rather than aurally” and thus inflicts “stigmatic injuries.” As in environmental law, they argued, what might seem like merely aesthetic damage to public land (“when a road is run through pristine wilderness,” for example) can in fact have devastating impacts on the hearts and minds of observers. Yet when they protest, the amici continued, these observers are portrayed not merely as mean-­spirited “hecklers,” but as “little better than B-­movie vampires: They suck the life’s blood out of communities, corrupting and destroying everything good and holy, yet cower in fear at the mere mention of a cross.”21 The injury is thus double: stigmatization by the cross, and stigmatization for speaking against it. Hence the Jewish Social Policy Network warned of the “spiritual bruising empathetic Christians like Mr. Buono may suffer from being cast in the role of victimizer.”22 By denying the possibility of such spiritual harm, the group Jewish War Veterans warned, the government sought “to blindfold” the “reasonable observer,” the hypothetical standard against whom all Establishment Clause violations are judged.23 The result, numerous amici suggested, would be outright segregation, or what the Jewish Social Policy Network called “religiously-­gated communities” where dissenters would fear to enter.24 Buono’s supporters largely spoke for religious outsiders, especially Jews, Muslims, and atheists. But they also spoke for “religion” itself. The Baptist Joint Committee emphasized the “degradation” and “profanation” of belief inflicted by a secularized cross. The secularist Center for Inquiry worried that the government’s hard line on standing created a tacit hierarchy, with the “truly spiritual” needs of the religious placed above the “merely psychological” needs of

xiv Preface

the nonreligious.25 The American Jewish Congress, attacking the Achilles’ heel of Establishment Clause jurisprudence, warned that the government’s distinction between “ideology” and “belief ” moved the First Amendment into dark theological territory.26 A divided court ultimately disagreed. The cross could stay on its lonely hillock. Writing for the plurality, Justice Anthony Kennedy ruled that the land transfer and memorial designation were driven by secular motivations. “Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message,” he wrote. Moreover, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.” Similarly, the Mojave Cross “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”27 The more conservative justices were less diplomatic. Samuel Alito stressed that removing the cross would have sent a dangerous message that the government is hostile to religion, contrary “to the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.” Antonin Scalia (who lambasted the ACLU during oral arguments for suggesting that Jews could not be honored by a cross) categorically denied Buono’s standing to sue, arguing that being “offended” by a symbol simply does not constitute a cognizable injury. The liberal minority was incensed by all of these claims. But it was the secularization of the cross that seemed to irk them most. “Making a plain, unadorned Latin cross a war memorial does not make the cross secular,” fumed Justice John Paul Stevens, the Court’s only veteran. “It makes the war memorial sectarian.”28 The court was mocked by the Left and praised by the Right.29 As Slate’s Dahlia Lithwick put it, “Many close readers of the judicial tea leaves saw the case as representing a great shift at the high court toward permitting more religious displays on state property and a triumph for the advocates of that cause.”30 Despite remaining legal ambiguities, the deal seemed sealed: Buono lost, the VFW and the Sandozes won. They could now unbox the cross. But the cross was gone. Less than two weeks after the Supreme Court handed down its ruling, workers arriving to replace the box (which someone had torn off yet again) discovered that the cross had been stolen in the night,

Preface xv

its bolts cut from the rock.31 Liberty Institute, the conservative Christian legal foundation representing the Sandozes, offered a $25,000 reward. “This is an outrage, akin to desecrating people’s graves,” said Liberty Institute CEO Kelly Shackelford in a press release. “This was a legal fight that a vandal just made personal to 50 million veterans, military personnel and their families,” said VFW national commander Thomas J. Tradewell Sr. “To think anyone can rationalize the desecration of a war memorial is sickening.”32 A week later, a replica appeared. But some legal issues were still unresolved, and it was removed. A few days later, the Barstow Desert Dispatch received a statement from someone who claimed to have removed the cross. The anonymous writer, who also claimed to be a veteran, promised to return the cross if a suitable private place of display could be found, or if a nonsectarian memorial could be erected on Sunrise Rock. The writer said the cross had been removed “lovingly and with great care,” stressing that it had been “simply moved,” not “vandalized.” It was done because the cross was an “oddly placed tribute to Christ,” not a war memorial, and that by pretending otherwise the Supreme Court had “desecrated and marginalized the memory and sacrifice of all those non-­Christians who died in WWI.” The writer claimed to have brought a small, nonsectarian memorial to Sunrise Rock on the night the cross was removed, but “technical difficulties” prevented its installation. “Despite what many people are saying,” the statement read, “this act was definitively not anti-­Christian. It was instead anti-­discrimination. If this act was anti-­Christian, the cross would not have been cared for so reverently. An anti-­Christian response would have been to simply destroy the cross and leave the pieces in the desert.”33 Nothing happened. It was a stalemate. Activists turned their attention to other cross controversies in Utah and San Diego. Then in November of 2012, just as the Liberty Institute announced triumphantly that a new cross would be dedicated on Sunrise Rock as part of a court-­approved war memorial, another anonymous tipster contacted the San Mateo Sheriff’s Department, informing them that the original cross could be found tied to a fence post in Half Moon Bay, 500 miles from the preserve. Followed by incredulous camera crews, police recovered the cross.34 (Sandoz later confirmed that it was indeed the original.) No one was arrested. A new cross was installed. At the rededication ceremony, a representative of the American Legion, Rees Lloyd, told a reporter for the Riverside County Press-­Enterprise that the “resurrection of the cross” represented a triumph over the ACLU, “which has become the Taliban of American liberal secularism, destroying crosses for profit in lawsuits all over the country.”35

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So ended the saga of the cross on Sunrise Rock, at least for the time being. In less than a decade, it was transformed from an anonymous roadside memorial to a symbol of America’s culture wars, of a Manichean clash between Christianity and secularism, between tolerance and intolerance, injury and annoyance, ideology and belief. Similar symbols litter America’s public spaces. Some, like the Mojave Cross, were made by human hands; others are part of the land itself. Little by little, place by place, icon by icon, battles across the religious-­ secular divide have produced a new geography of the sacred.

1 Landscapes of Secular Law

Presecular man lives in an enchanted forest. Its rocks and streams are alive with friendly or fiendish demons. Reality is charged with a magical power that erupts here and there to threaten or benefit man. —harvey

cox

There are various tough problems yet to solve, and we must make shift to live, betwixt spirit and matter, such a human life as we can. —henry

david thoreau

What does it mean to see sacred space in a secular way? To many, the answer might seem obvious. It is to see with a disenchanted eye, with the cold, disembodied gaze of self-­sufficient reason. Mountains, trees, hilltop crosses: to a secular viewer these may symbolize the sacred, but they cannot be “charged with a magical power that erupts here and there to threaten or benefit man,” as the theologian Harvey Cox wrote five decades ago in The Secular City. These things can represent, but they cannot act. They certainly cannot control our collective fate. True, they may still kindle sparks of “presecular” feeling in moments of awe, dread, and wonder. But these feelings are confined 1

2

Chapter 1

to the deeply personal realm of so-­called spiritual experience. Sacred landscapes may still speak to the secular heart, but only in private, and only in whispers. To be truly secular is to see the enchanted forest for its merely symbolic trees. Who actually sees the world this way? As it turns out, surprisingly few American secularists. In fact, this way of seeing has long been favored by the country’s de facto Christian establishment, which has enshrined it in the neutral, putatively “secular” language of constitutional law. From the standpoint of many secular activists, especially those who speak on behalf of minority faiths, it reeks of religious ideology. To begin to see why, let us linger at Sunrise Rock. What was truly at stake in this lonely corner of the Mojave? If we listen to hard-­nosed analysts of America’s church-­state struggles, Salazar v. Buono was nothing more than a turf war. One side wanted religion in the so-­called public square; the other side wanted it out. Sunrise Rock was just the latest setting in a series of symbolic clashes between these abstract political desires. Talk of injury and offense, heritage and desecration, feelings and freedom: it was just that, talk. What was truly at stake was social and political power—the power to define national identity in religious or nonreligious terms, to define the military (and thus the nation-­state) as Christian or secular, to define citizenship as a sectarian privilege or a pluralistic ideal. For Buono and his allies, the cross simply did not belong. To see in a secular way was thus to see territorially. It was to protect the public sphere from religious influence. This story assumes more than it explains. For one thing, it fails to explain why the supposedly secular side claimed to be fighting for religious freedom, or why the supposedly religious side claimed the cross was “merely” a secular symbol. Nor can it explain why both sides fought so hard over philosophical questions of meaning, feeling, and seeing. It cannot explain their seemingly endless interpretive wrangling over the “message” of the cross and its effects on the hearts and minds of observers. One can easily imagine a counterfactual world where these kinds of questions simply never came up, where religious symbols either were or were not permitted in public places—indeed, where the question, “What does a hilltop cross mean?” had only one, blindingly obvious answer. Power and identity alone cannot explain why vision and emotion mattered so much; nor can it explain why this humble object inspired such intense political passion. A more subtle reading might focus on the kinds of religion at stake in the case. From this perspective, secularists were fighting to confine “dangerous” and



Landscapes of Secular Law

3

“unreasonable” religion to the private sphere, represented by pro-­cross activists on the Christian Right. It was thus to discipline and domesticate, to make public space a symbolic proxy for the reasonably religious citizen-­subject. There is perhaps more truth to this story, but it, too, fails to explain some important details. It cannot account for the iconoclastic and passionately anti-­authoritarian nature of Buono’s crusade. It cannot explain his allies’ overriding concern with alienation, exclusion, and stigmatization. It cannot explain “Sherpa San Harold Horpa” and his half-­sardonic stupa. Few of Buono’s supporters spoke for the rational, godless republic. If anything, they spoke for religious outsiders and spiritual dissidents, those threatened by the state’s performance of religious reasonableness. After all, it was the secular activists, not their largely Christian opponents, who held that the cross was more than a symbol, that it was in fact enchanted, that it did possess something like a “magical power . . . to threaten or benefit man.” It was they who insisted on the visceral materiality of the sacred. So what was at stake on Sunrise Rock? To answer this question, and to answer the deeper questions it raises about the geography of religion in late twentieth- and early twenty-­first-­century America, we must listen carefully to what both sides said about seeing. We must see it as part of an unfolding drama of secular vision.1 That drama is the subject of this book. QUESTIONING THE SACRED

To see this drama clearly we must look hard at secularism, not just as an abstract political ideology or cultural outlook on religion, but as a way of making and imagining places. At the same time we must look hard at landscape, not just as a distinctively modern “way of seeing,” but as a way of seeing with a specific religious history and a specific religious politics. The search for the secular eye is, counterintuitively, a search for the sacred—how it is experienced, represented, and regulated in an age of religious resurgence and diversity. It is also a search for the profane. What does “desecration” mean in a world where nothing and everything are sacred? Since the late 1970s, when activists on both sides of the culture wars began to mobilize nationally for and against the “public display of religion,” the visual regulation of the sacred has become a seemingly intractable problem.2 Yet the roots of this problem run deeper than one might imagine. They arise not just from tensions over the so-­called separation of church and state, but from tensions over the idea of landscape itself. From time to time, these anxieties sur-

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Chapter 1

face in constitutional conflicts such as Salazar v. Buono. These cases raise hard questions about the political geography of public religion, but they raise even harder questions about cultural logic of secular law. When how to see the sacred becomes a constitutional question, the very concept of landscape—and thus the ideal observer that this concept implies—is put on public trial. How should a reasonable, sane, civil person see a place like Sunrise Rock, and how should he feel about what he sees? Whose ways of seeing and feeling should civil society value and the state protect? These are questions not just about tolerance and cultural inclusion, but about the relationship between religious subjectivity and the geographical self. They are about finding a spiritual home in a world of material places.3 To some, “spirit” and “matter” might seem like oddly theological terms to describe a legal squabble, but I use them quite deliberately. They echo the second epigraph to this chapter, a line from the famously anti-­Christian “Sunday” chapter of Thoreau’s A Week on the Concord and Merrimack Rivers. Railing against the parochial piety of his churchgoing neighbors and blasting Jesus himself for directing all his thoughts “toward another world,” Thoreau rallied for “matter,” for a worldly embrace of nature and its immanent, “heathenish” sacrality. He spoke for “here” and “now.” But as any religiously sensitive reader will recognize, Thoreau’s maxim can also be read as a Calvinist lament: we must “make shift to live,” muddle through and make the best of it, stuck “betwixt spirit and matter.” While radically secular in significant ways, Thoreau still wrestled with this most protestant of problems, as many Americans do to this day.4 Ever alert to the dangers of idolatry, Protestants and their cultural legatees have projected their centuries-­old fight to purify faith onto the places they inhabit.5 The tension between a “true” religion of the spirit—individual, private, voluntary, and textual—and its “false” other—communal, public, coerced, and iconic—has both a history and a geography. The idea of landscape brings this tension into focus. Thirty years ago, the cultural geographer Denis Cosgrove redefined landscape as a “way of seeing— a way in which some Europeans have represented to themselves and to others the world about them and their relationships with it, and through which they have commented on social relations.”6 Embodied in the pictorial conventions of linear perspective, this way of seeing or “visual ideology” naturalized capitalist social relations by constructing a privileged external position from which the harmonious workings of nature and society could be surveyed and controlled.



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5

As it diffused from its elite origins in Renaissance Italy, this idea of landscape became a kind of modern common sense. By shifting attention from the view to the viewer, Cosgrove showed that landscape was not simply a portion of visible space subject to aesthetic judgment—not just “scenery”—but a powerful tool for projecting moral, political, and economic values onto the material environment, and for using the environment to sustain those values in turn. As he later put it, the “anti-­hero” of this work was “the figure of the individual European male, conceived as a universal subject, exercising rational self-­consciousness within a largely disembodied mind, and endowed with a will to power: thus the sovereign subject of history.”7 Since then this antihero has reappeared in many guises and cultural contexts: colonist, patriarch, nationalist, scientist, developer, environmentalist.8 As critical landscape theory has evolved beyond its Marxist origins, it has addressed modernity’s full panoply of “-­isms” (including the very “ocular-­centrism” that led scholars to examine vision in the first place). We now possess a rich body of scholarship on landscape not as the static backdrop to human history but as a power-­laden visual practice. As W. J. T. Mitchell famously put it, we have learned to see landscape not as a noun but as a verb, “not as an object to be seen or a text to be read, but as a process by which social and subjective identities are formed.”9 Where is secularism in this history? Nowhere and everywhere at once. It is nowhere because it is almost never discussed explicitly; everywhere because it underlies some of our most basic assumptions about landscape as a “quasi-­ religious” concept. Its absence reflects its ubiquity. After all, is there any word in our geographic or environmental vocabulary so consistently shrouded in the rhetoric of spirituality, mysticism, and holiness? And is there any rhetoric that has provoked stronger critical suspicion?10 What kind of work do this rhetoric and this suspicion do? Where do they come from? What kind of cultural sense do they make? After all, none of these religious concepts—spirituality, holiness, mysticism—can be treated as culturally universal or politically neutral.11 They are the products of very particular and often quite recent cultural histories. Yet in landscape studies, religion, when it is considered at all, is generally considered to speak for itself. We know “the sacred” when we see it, and rarely do we trust what we see.12 This is a problem, and not simply because people actually see the sacred in many different ways, but also because our consciousness of its kaleidoscopic

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nature—and of the anxiety and doubt it engenders—entails a way of seeing in its own right. It is a way of seeing in which “sacred space” does not disappear but comes in nagging quotation marks. Most people think of the secular as the antithesis of the sacred. But as scholars at least since Durkheim have recognized, things are more complicated. Increasingly, secularism is understood not as the mere absence of religion or even as a coherent political doctrine, but as a many-­faceted way of being and believing, a myth-­bound way of life with “its own practices, its own sensorium, its own hierarchy of faculties, its own habits of being.”13 While the nature of this cultural formation has been hotly debated, it is widely acknowledged to arise from a reciprocal relationship with established religious traditions. To illustrate this relationship, the anthropologist Hussein Agrama invokes the famous M. C. Escher lithograph of two hands simultaneously drawing each other into existence. According to Agrama, this paradoxical co-­creation is a defining characteristic of secular thought and practice. Secularism, he argues, functions as a form of “questioning power, a modality of power that operates through the activity of questioning that it animates.”14 It is, in this sense, less a coherent form of life than an impulse toward religious reflexivity—an impulse, widely shared by religious and irreligious alike, to continually ask what religion is and where it belongs. To make matters even more complicated, the terms of this questioning power, which vary greatly from society to society, are typically derived from the very religious traditions it questions.15 Thus in America we see strong evidence of what the literary scholar Tracy Fessenden calls the “Protestant-­Secular continuum,” a discursive field in which protestant ideology shades into secular common sense.16 For an example of this infinite cultural regression, we need look no farther than Sunrise Rock, where Agrama’s “two hands” were entwined beyond hope of untangling. Here we saw an openly religious secularist fighting against the covert religious secularization of a religious symbol of secular sacrifice. Buono, a professed Catholic, found himself in the traditional role of the Protestant iconoclast, protecting individual conscience against a dangerous and corrupting idol. This condition of paradoxical entanglement—this anxious questioning of our spiritual attachments and aversions to sacred things and places—can be seen at every scale, from contests over sites of national memory to small-­town spats over loca sacra of a much humbler sort: parks, cemeteries, streams, and forests.



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Such conflicts are not simply “religious” in a general sense.17 They are deeply conditioned by a troubled and sometimes violent history of Protestant encounter with religious Others—Native Americans, Catholics, Jews, and Muslims, not to mention Mormons, Jehovah’s Witnesses, and new religious movements of many different stripes. Yet they are also peculiar to a new era of seemingly exponential religious diversification, memorably characterized by the philosopher Charles Taylor as a “spiritual supernova.”18 As the historian William R. Hutchison wrote in 2003, “Americans and their public policy are only now coming to terms, however grudgingly or opportunistically, with a radical diversification that came crashing in upon the young nation almost at the moment of its birth.”19 With this late twentieth-­century religious reckoning, the meanings of many cultural categories have changed, including “sacred space,” a category often treated as timeless.20 Of course, the United States is not the only secular democracy wrestling with the spatial implications of religious diversity. What makes its situation different is, in part, its distinctive legal culture. As the social critic Will Herberg, author of the influential Protestant–­Catholic–­Jew, observed sixty years ago, “Such is the peculiar structure of American religious institutionalism under the constitutional doctrine of ‘separation’ that every tension between religious communities, however deep and complex it may actually be, tends to express itself as a conflict over church-­state relations.”21 Although Herberg was wrong about many things, he was right about this. In perhaps no other Western country do courts play such an active and central role in defining the limits of religious freedom, and thus in the definition of religion itself.22 And nowhere is this clearer than in conflict over the religious character of public space, the symbolic home of the First Amendment and the stage upon which America’s constitutional covenant is ritualistically dramatized.23 Law, in this sense, is much more than an instrument of power. It is a system of meaning-­making through which the secular-­religious divide is continually renegotiated and reproduced.24 It does not simply regulate religion but is “deeply implicated in the structuring of U.S. religious practice,” as law and religion scholar Winnifred Fallers Sullivan argues.25 This process does not unfold in some imaginary, disembodied “public square,” as so many pundits suggest. It makes, destroys, and remakes actual places. To find the secular landscape, therefore, we must ask how law literally “lies in the land.”26 In pursuit of this question, this book focuses on three main “genres” of socio-

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legal drama: the “public display of religion” (crosses, nativity scenes, monu‑ ments to the Ten Commandments, and so on); the regulation of Native American sacred sites; and the preservation of wilderness areas. All three genres came to prominence during the 1970s and became firmly established in the national legal imagination during a critical period in the country’s recent religious history, marked by both the rise of the Christian Right and increasingly visible and globalized pluralism. As windows onto the broader cultural terrain of secular place-­making, these genres reveal the most important ways in which the volatile cultural dynamics of secularization and desecularization have shaped American sacred space. Although anchored in the field of cultural geography, this book takes an interdisciplinary and synthetic approach, ranging widely across the social sciences and environmental humanities. With tools from these fields, it ties together a broad and eclectic body of empirical research: interviews with litigants in Establishment Clause cases; media coverage; popular social commentary, and, above all, critical interpretation of legal texts, from lawyers’ briefs and judicial opinions to trial transcripts and client correspondence. It uses these sources to anatomize the secular eye, isolating and reconstructing its inner workings through a series of thematically linked case studies. In keeping with geography’s tradition of methodological pluralism, it seeks to show how history, culture, and politics interact within a broad sociospatial frame. Its aim is not simply to put a spatial or environmental twist on the study of secularism, however, but to show how the secular-­religious dialectic has influenced how we imagine and experience landscape in some very basic ways. One of these ways, perhaps the most intuitive for lawyers and academics alike, is the assumption that landscape is a symbolic screen upon which social groups pro­ject their fears, hopes, and fantasies. Beneath this symbolic surface supposedly deeper social realities lie hidden.27 Yet when we assume that clashes over sacred place are “really about religion” or “really about politics”—that is, when we assume that landscape is simply a symbolic proxy for the contestation of meaning, power, and identity—we unwittingly take sides in a theological contest, just as we do when we insist on landscape’s irreducible materiality.28 The idea that landscapes “merely symbolize” is not religiously neutral. For it is the very materiality of the landscape that is at issue in these cases, its capacity to physically fuse place and religious identity, to embody belief. Like the religious body, the religious landscape has become a potent political problem in this era of revitalized public faith, globalized religious violence, and environmental



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anxiety. This is why people care so much about these fights, trivial and esoteric as they may sometimes seem. Religion is the dominant geopolitical idiom of our time.29 No wonder holy landscape makes us nervous. GEOPIETY AND DISENCHANTMENT

Not all sacred spaces are subject to the questioning power of secularism. Thoreau’s Walden, John Muir’s Yosemite, Wendell Berry’s Kentucky farm, Annie Dillard’s Tinker Creek: the private sanctuaries of the mainstream environmental tradition do not threaten what Martha Nussbaum calls the “conscience-­space” of the individual.30 On the contrary, they stand as icons of individual contemplation and places of religious refuge. In a nation of spiritual “seekers,” they pose little threat.31 But as environmentalists learned long ago, public sacrality—staking claim to a sacred commons—can produce anxiety in fierce abundance. To say that a public place is sacred and therefore off-­limits to profane activity is to invite accusations of religious fanaticism and spiritual corruption (unless that place, like a national park, has already been officially consecrated). Questions of sacred space are thus questions of citizenship and civil society. They are questions about whose feelings for place count as civil, whose ways of seeing count as civil, and thus who is included in the cultural sphere of citizenship and civil belonging. Ever since John Muir called those who would flood the Hetch Hetchy Valley “temple destroyers”—and ever since Gifford Pinchot countered by calling Muir and his allies “enthusiasts” who “would sooner save a rock than human life”—religious rhetoric has suffused the politics of iconic “natural” landscapes. After all, what is a “tree hugger” but someone whose feelings for nature are beyond the pale of civility, someone whose beliefs are tainted by an unreasonable, fetishistic attachment to inanimate objects? With the rise of the Christian Right, this rhetoric has become far more virulent. It is no accident that in conservative Christian circles, “Who changed the truth of God into a lie, and worshipped and served the creature more than the Creator” (Rom. 1:25, KJV) has become scriptural shorthand for neo-­pagan heresy. For many American Christians, earth worship is a serious social problem. Geographers have a word for this problem: “geopiety.” Coined in the early 1960s by John Kirtland Wright, geopiety was adopted by the leading humanistic geographer Yi-­Fu Tuan to name “a broad range of emotional bonds between man and his terrestrial home”—bonds of reverence, humility, compassion, fear.32 Tuan seemed especially eager to separate good geopieties from bad,

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the former exemplified by various premodern religious traditions, the latter by nationalism and other kinds of ethnoterritorial attachment.33 As a visual concept, geopiety foregrounds the fraught emotional bond between landscape and territorial community. This bond poses special difficulties for secular liberalism, exemplified most notoriously by ethnonationalist appropriations of the picturesque and sublime. (Think of Heidegger’s Black Forest farmhouse, for example, or Gutzon Borglum’s monument to Manifest Destiny, Mount Rushmore.)34 For many secular liberals, geopiety and political idolatry go hand in hand. As I argue in chapter 5, the liberal critique of wilderness—that “sacred American icon” on which “so many of the quasi-­religious values of modern environmentalism rest,” as William Cronon famously put it—is a paradigmatic case of this secular ambivalence toward holy landscape.35 Geopiety has long played an important role in mainstream secularization narratives, either as an atavistic relic of premodern religiosity or a nostalgic response to disenchantment. A disenchanted world, as Max Weber saw it, was one where “there were no mysterious, unfathomable forces at play, [and where] one could control all things, in principle, through reasoning.”36 Subsequent retellings have stressed how disenchantment made nature “calculable”: inert, transparent, knowable through reason alone. Along with witchcraft, sacred relics, and the humoral theory of disease, secularization banished genii loci from the modern West.37 For Charles Taylor, this loss involved a complete rethinking of relations not just between religion and society (what is normally meant by “secularization”), but even more fundamentally between nature and the self, “outside” and “inside.” The enchanted world, Taylor writes, “was one filled with spirits and moral forces, and one, moreover, in which these forces impinged on human beings.”38 In this world of “porous selves,” meaning existed quite literally outside the human mind. What Taylor calls “charged objects”—relics of the saints, sacred groves, the Host—possessed causal power and intrinsic meaning. Indeed, in a world of truly “porous selves,” the notion of a clear inside/outside boundary simply made no sense.39 Not surprisingly, for Taylor, romantic environmentalism is largely an attempt to recover the porous self, a nostalgic quest to re-­enchant nature. Whether or not nature ever really was enchanted in the way that modern romantics imagine, disenchantment is undoubtedly experienced as a real condition, something either to embrace or resist.40 Between the enchanted world of immanent supernatural forces and the disenchanted world of transcendent



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spiritual values lies the ambivalent terrain of modern secularity. We are caught in-­between, at least in our public lives. We feel the numinous power of place, yet we doubt where that power comes from. Hence only in a thoroughly secular world is it possible to speak of religious ritual—or, by extension, ritualized space—as “merely symbolic.” This is because secular religion—religion as imagined in a secular age—is largely a matter of personal commitment and devotion, not collective, embodied, emplaced experience. It exists “inside” the self. Although rituals and ritualized space still matter, they are no longer a “real presence,” coextensive with interior realm of faith. Symbols do not impose their meanings on secular believers. They invoke them.41 The notion of a landscape that is “only symbolic” follows the same religious logic. LANDSCAPE AND IDOLATRY

As the link with idolatry suggests, geopiety is an ineluctably visual problem, especially for strongly aniconic religious traditions such as Protestantism. Although its origins predate the rise of landscape art, it is impossible to rid the modern landscape idea of its pictorial connotations. For this reason, it should come as no surprise that landscape occupies an ambivalent place in the protestant geographical imagination. On the one hand it reveals the divine goodness of nature; on the other it can lay idolatrous traps. Indeed, among American environmentalists there is an established tradition of blaming the biblical prohibition against idolatry for the tragic secularization of nature. In his seminal indictment of Christian attitudes toward nature, for example, Lynn White Jr. famously wrote, “To a Christian a tree can be no more than a physical fact. The whole concept of the sacred grove is alien to Christianity and to the ethos of the West. For nearly 2 millennia Christian missionaries have been chopping down sacred groves, which are idolatrous because they assume spirit in nature.”42 For many scholars, it is a short step from sacred groves to space in general. Following this logic, geotheologian Belden Lane blames the “rampant secularization of nature” and “technical mastery of the land” on the Judeo-­Christian faith in “a transcendent God of history,” “a Lord of times but not of places.”43 Utopian through and through, Christianity is a religion of nowhere.44 Or so one story goes. Yet there is also a tradition of protestant environmental thinkers misunderstanding just how profoundly protestant this problem is.45 As Alexandra Walsham shows in her sweeping history of Protestant geographic practice in Brit-

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ain, the Reformation produced new possibilities for understanding landscape, both positive and negative: for some, the idea that “the physical world supplied an emblem of divine love”; for others, that it was a “reservoir of soul-­destroying error,” “a source of temptation to backslide to the superstition of a benighted Catholic past,” and “a lingering reminder of the dark and distant ages of heathen sacrifice.” Protestants’ “pervasive and passionate obsession with eradicating idolatry” produced a complex geography of the sacred. Not just relics and statues but pilgrimage routes, standing stones, and roadside crosses were destroyed in the name of true religion. On the one hand, the reformed theology of idolatry appeared to utterly deny the presence of the sacred in the material world. “Humanity’s fatal propensity for making anything perceptible by the eye into an idol turned the natural world itself, metaphorically speaking, into a minefield littered with explosive devices. . . . Any visible thing, then, might become a teacher of lies. Springs, trees, mountain peaks, and rocky fissures could themselves become a source of terrible peril.” Calvin himself put it starkly: God had “abolished all distinction of places.”46 On the other hand, this rejection of divine presence in the material world did not rest on a dualistic belief in the inherent corruption of nature.47 On the contrary, Calvin believed nature was good. What made doctrines like transubstantiation idolatrous was the believer’s small-­minded and egotistical need to confine God to material things. Human desire, not fallen nature, was to blame. It is easy to forget just how seriously Calvinists took this “improper mixing” of spirit and matter. It was not just one sin among many. Idolaters were guilty of nothing less than reversing “the proper order of the universe, placing the material over the spiritual, the finite over the infinite.” Their crime was therefore “the most sinister parody of man’s relationship with God and the boldest affront on the divine majesty,” as historian Carlos Eire puts it.48 Thus, against Luther, who retained a modified belief in transubstantiation, Calvin asserted that the Eucharist was purely symbolic, a “commemorative event.”49 Images, things, places: all pointed toward the nonmaterial realm of Spirit.50 Yet for all their suspicion of places, things, and images, Reformation-­era iconoclasts did not so much eliminate sacred landscape as transfigure it. As a ritualized material practice, iconoclasm produced its own, paradoxical form of sacred space. For example, a place where a cross had stood could become a favored site for the subsequent destruction of “popish” idols.51 Such places also became powerful centers of meaning for Catholics and future generations



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of guilt-­stricken Protestants trying to reconnect with what they imagined had been lost. The absence of an icon could become a powerful presence. The most important consequence of Protestant landscape purification was the turn from sacramental to symbolic space.52 In many cases, this turn could feed into a fervent reverence for nature. In post-­Reformation England, iconoclasm fed into a fascination with natural theology, where “raw,” unmodified nature could be interpreted as the book of God. In wild nature, signs of divinity abounded. Landscape became a “supplementary text of revelation,” a symbolic vehicle through which moral and spiritual lessons could be gleaned.53 Walsham points to outdoor camp meetings, which even contemporary observers likened to Catholic pilgrimage. Especially popular among seventeenth-­century Scottish Presbyterians (the religious milieu that eventually produced John Muir), camp meetings took place in ritualized settings where the numinous forces of nature were barely kept at bay.54 Sacred groves did not disappear, but their sacrality had been radically transfigured. In Puritan New England, the iconoclastic embrace of emblematic nature has a well-­known history. From Jonathan Edwards’s groaning creation to Emerson’s transparent eyeball, seeing nature became an important spiritual exercise, so long as it was seen as a sign, not a sacrament.55 The scholar of religion David Morgan captures this complex dialectic between presence and absence with the Hegelian concept of “sublation.” Sublation (Aufhebung) is a process that entails simultaneous destruction and preservation, resulting in synthesis. Morgan invokes it to capture the curious way in which Protestant iconoclasm undermines the materiality of images, bodies, and places through the material practices of representation. The Protestant doctrine of sola scriptura—the Word alone as the source of religious truth—does not render images, bodies, or places obsolete. Instead, it sublates them. Thus, the sublated medium is synthesized “as a sounding board or matrix.” Morgan uses the example of a cover illustration from a tract against images by Andreas von Karlstadt, a Wittenberg reformer, where Karlstadt speaks before a group of men tearing icons from the walls of a church. “Images must be removed,” writes Morgan, “yet it is an image that preaches the sermon against images. Imagery is both canceled and preserved, made to witness against itself.” In Protestant visual culture, images thus serve to highlight the iconicity of the word. An empty church, stripped of all idolatrous images, is still a representational space. But what is represented is its very nonrepresentationality, its absence of idolatry. The church interior functions “as a yoke or matrix in which

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the worshiper was directed to recognize the grace of God as the singular means of redemption.” Morgan describes this as an aesthetic of “transparency,” a space in which the absence of idols is very much present. When Protestant reformers toppled heathen standing stones and crushed Catholic crosses, they did not erase them from social memory but made their absence a living presence, one that continually underscored the immateriality of the true religion. By viewing and inhabiting such spaces, confessional identities were forged and sustained. “At the heart of Protestant aesthetics is a dualist construction of pure content,” Morgan concludes, “the dominion of words and ideas, over against image and space as the material domain of the body. In the dialectical logic of sublation, word and image are more than simply locked in opposition. They are arrayed in order to allow a characteristic experience of content as pure, unadulterated by human flesh and imagination.” Materiality thus remains as necessary condition for the apprehension of the immaterial, for ultimately, “The sacred does not happen in things, but in word, deed, and feeling.”56 Morgan writes about pictures, but landscape is part of this story, too. Sublation can be seen in certain strains of protestant environmental thought: John Muir’s obsessive search for pure spirit in the rocks of Yosemite, for instance, or Edward Abbey’s quest to transcend transcendence in the Utah desert. Among other things, Morgan helps us understand the apparent paradox of protestant environmental aesthetics. How could Emerson, Thoreau, or Muir be so clearly a product of protestant culture and yet embrace the sacramental physicality of nature? One answer is that their vision, and thus the landscapes they loved, were at least partially sublated. It is not surprising that American secularism—which owes so much to protestant culture—retains more than a trace of this way of thinking. Usually linked to the Romantic “cult of the sublime,” this style of seeing owes as much, perhaps more, to the Protestant invention of “spirituality.” This is why, as John Lardas Modern puts it (with tongue only partly in cheek) that disenchantment “has been one of the most significant enchantments of the secular age.”57 By locating spirituality in the deepest recesses of the self, Protestantism produced a new kind of self-­consciously religious gaze. The origins of this religious formatting are deep and diverse. Yet they appear to have crystallized most clearly in mid-­ nineteenth-­century America, when fragmenting forces of pluralism and religious innovation produced a new form of self-­conscious Protestant religiosity, one in which “true religion” became “the exercise of one’s freedom in private.”58 Much has changed in the American religious scene since then, of course,



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but this cultural schema has proven remarkably durable. To locate it at the heart of secularism is not to suggest that secularism is really Protestant theology “in disguise,” but to attend to the ways in which religion itself creates the conceptual environment in which “religion” is defined. It is also to attend to the hard political realities of secular iconoclasm.59 For much of American history, it has served to oppress and exclude a range of supposedly idolatrous Others, from Catholics to Muslims to Native Americans. By encasing enchantment within the “conscience-­space” of the individual, protestant secularity both excludes more exterior, “ritualistic” forms of belief and enshrines the individual psyche as the privileged site of religious experience. Within this cultural matrix, the symbolic interpretation of space has become a test of spiritual purity. THE MATERIAL AGENCY OF PLACE

When we behold a beautiful landscape, we say that we are moved. But “moved” by what exactly? By something that inheres in the landscape itself? This aesthetic commonplace touches a sore spot in the secular geographical imagination. It also points to the trouble with conceiving of the secular gaze in purely visual terms. As Mitchell notes, “Idolatry is deeply connected to the question of place and landscape, territorial imperatives dictated by local deities who declare that certain tracts of land are not only sacred but uniquely promised to them.”60 Try as we might to purify the world of these nonhuman agents, they return in new forms, including the mundane discourse of law.61 Thus, in the cases I examine in this book, a central yet unspoken question is, “What can landscapes do?” Can they inflict real injuries? Can they move us in dangerous, unjust ways? Can a memorial cross hit a Jewish veteran like a punch in the gut? Can a snow-­making machine force a Navajo medicine man to give up his faith in supernatural beings? These are uncomfortable questions because they violate secular common sense about the agency of things and places. In a world of “buffered selves,” inanimate objects—and, by extension, landscapes—cannot make us do anything. It is helpful to think of this commonsense view as a form of what the anthropologist Webb Keane calls “semiotic ideology.” As explored in his work on Dutch Calvinist missionization, semiotic ideology consists of “people’s background assumptions about what signs are and how they function in the world”—and not just about signs per se but about “what kinds of agentive subjects and acted-­upon objects might be found in the world.”62 Keane focuses on

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the materiality of signifying practices, or what he calls “semiotic form.” He is especially interested in how, for Protestants, the materiality of signifying practices such as language or image-­making can become a “source of moral or political anxiety, demanding active intervention.”63 Iconoclasm is one such intervention, as is the vernacularization of scripture. Keane shows how Calvinist missionaries, in their efforts to purify indigenous religion of “fetishism,” made apparently trivial matters (such as praying with your eyes closed) into metaphysical battles over “what kinds of beings inhabit the world, what counts as a possible agent, and thus what are the preconditions for and consequences of moral action.”64 For Keane’s “Christian moderns,” freedom depended on the dematerialization of religious practice.65 Law is a powerful engine of semiotic ideology. It tells us what things are and who they can hurt. This is how the regulation of hallucinogenic drugs on Indian reservations, logging in a national forest, and the display of nativity scenes can be unified within a seemingly coherent system of meaning. Within the representational economy of constitutional law, these very different things become in crucial ways “the same.” What brings these things, places, and practices into alignment under the name “religious freedom” are shared assumptions about “what words and things can or cannot do, and to how they facilitate or impinge on the capacities of human and divine agents.”66 The secular landscape is a landscape haunted by idolatry and enchantment, by the material agency of place. It is a landscape haunted by totemism and ritual, by the heteronomous attachment to things and images. The secular landscape is a sublated medium. Yet through the ritualistic visual practices of law, its materiality is rendered safe for civil society. Whereas in previous eras attaining this safety would have required the actual banishment of demonic forces, today it requires the therapeutic disciplining of religious sensibilities. To possess a “buffered self ” in modern America is not to deny the enchantments of landscape, but to experience them in the proper way, not as sacraments but as symbols. Through the crucible of semiotic ideology, “reasonable” believers are formed. Unless, that is, they refuse to play along. For many Americans, non-­Christian and Christian alike, law has become a tool for subversive re-­enchantment. Phenomenologically, this makes perfect sense. To a Muslim passing a nativity scene on the steps of a courthouse or to an evangelical praying at the foot of a hilltop cross, the signifying practices that bind territory, religion, and citizenship are not matters for abstract constitutional debate. They strike at what the political



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theorist William Connolly calls the “visceral register” of political experience, a dimension where one’s standing in the polity is not so much cognized as felt.67 As both spectacle and quotidian material presence, they infuse the landscape with immanent legal meaning. “Landscapes have an unquestionably material presence,” Cosgrove writes, “yet they come into being only at the moment of their apprehension by an external observer, and thus have a complex poetics and politics.”68 In the poetics and politics of American civil religion, this material presence is a confounding spiritual problem. In part, this has to do with the intertwining of visuality and territoriality at the heart of the modern landscape concept, its tense conjunction of “scenery” and “community.” The idea of landscape is as inescapably material as it is visual. Although it originally signified a unit of juridical space—a place defined by customary law—it has become, in part through its evolution into a largely scenic idea, a synecdoche for political territory at a range of geographic scales.69 How we see can determine where we belong. This might all seem very heady and abstract. But such claims about landscape have important practical implications, and in a wide range of political arenas. An expression of disgust at a clear-­cut forest or anger at a roadside cross is thought to reveal one’s moral character, perhaps even whether one is morally competent to participate in democratic civil society. That is why this book is centrally concerned with the question of standing, not simply in the narrow legal sense of the term but in the broader sense of one’s moral standing in a democratic political community. When secularists assert their standing to challenge civil religion, they are, in a sense, withdrawing their consent to a de facto religious establishment, inscribed in the cultural landscape. Relying on an intriguing geographical metaphor, the philosopher Stanley Cavell characterizes the concept of consent in liberal theory as “taking your place in society.” “And let’s suppose that you do not see the place, or do not like the places you see,” he continues. “You may of course take on the appearance of accepting the choices, and this may pre­sent itself to you as your having adopted a state of fraudulence, a perpetual sense of some false position you have assumed, without anyone’s exactly having placed you there.” This sense of fraudulence produces feelings of shame, which, for Cavell, is a valuable political emotion.70 As I discovered in interviews with plaintiffs who made the painful and sometimes frightening choice to fight their neighbors over longstanding landmarks or local traditions, many secularists confront their communities and their government because they feel ashamed of the places they call home. They

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feel that their fellow citizens couldn’t possibly mean what they are allowing their government to imply—that to be a “real” American means, at some basic level, to be a God-­fearing Christian. By profaning civil iconography, they register their shame. As I heard from one Christian lawyer who had received numerous death threats for his opposition to a hilltop cross, simply getting Christians to recognize their own faith is an enormous task when their national solidarity is questioned. “Why are [they] so fired up about this?” he asked of those who insist the cross is a secular war memorial: Because there is no symbol in the Christian religion that is more important to us! This is the resurrection! This is it! This is the key symbol. People wear it around their neck, you know! This is the key symbol of our religion, the most important symbol. I agree with that, I understand that, I grew up with that. I don’t have any problem with that. In fact, that’s my point!

His frustration was echoed by another lawyer I interviewed, a man who had helped sue for the removal of a Ten Commandments monument on the local courthouse steps. For him: The Ten Commandments—it is more than a religious symbol, and it’s somehow other than a set of doctrines. It is ten things . . . . When it’s sitting in the form of a public display by itself, it’s something other than a religious document, something other than a symbol. I’m not sure what exactly the right language for talking about it is. But . . . it is speech in a very real sense. It’s a declaration. And this is why it’s offensive in a special way. . . . It’s a declaration of who we are and who you are not.

As these quotations reveal, secularism need not be rationalistic and dispassionate. On the contrary, it can thrive on “aversive affect,” on feelings of shame, outrage, and revulsion. By this means, it produces a kind of negative, agonistic solidarity against the positive, integrating solidarity of civil religion. The geographical questions raised by this conflict are important, no matter how trivial individual cases may seem. They concern not only the role of place and landscape as tools for exercising power, building solidarity, and demanding recognition, but also the capacity of landscapes to mean at all. They also concern law’s capacity to define citizenship and even personhood in relation to specific configurations of agency, affect, and materiality—configurations that



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draw in complicated and often ambiguous ways on deep wells of both religious tradition and political thought. These questions are worth asking because of the deep spiritual and political investments that religious people everywhere make in their shared environments. One need only think of geopolitical conflicts such as Israel-­Palestine to sense the investments I am alluding to. But there are more ordinary examples all around us, conflicts over ways of seeing the sacred in the spaces of everyday life. Democracy depends on negotiating, somehow, the different lifeworlds of religious communities who live on the same land, and who can experience and imagine that land in radically different ways. This problem, and problems like it, provide a powerful justification for secular critique. After all, our very ability to articulate this problem—indeed, to perceive “a problem” at all—presupposes a viewpoint that can transcend these religious lifeworlds, if only fleetingly, and perhaps unhappily. LOOKING AHEAD

This, then, is my argument. In a secular age, “sacred space” comes in quotation marks. It is always in question, always contingent, at least in the public sphere. This contingency is not culturally uniform. It is shaped by the same historical forces that shape secularization itself, which vary greatly from society to society, place to place.71 In American civil society, a deep strain of protestant aniconism plays a cultural continuo.72 Its dualisms thrum in the background of ongoing controversies: spirit versus matter, transcendence versus immanence, belief versus ritual. Even as the country’s religious landscape diversifies and Protestants lose their hegemonic grip on public culture, the threat of idolatry hangs in the air. So does the promise of iconoclastic redemption. These are not timeless cultural traits or expressions of “national character.” They are systems of collective representation, part of the cultural background from which social actors fashion meaningful foreground scripts.73 In the social drama of American secularization, successful performances must ring true to this background culture, even when that culture itself is under attack. This is the paradox of secular iconoclasm. In their crusades against protestant political theology and public piety, American secularists must insist on the visceral materiality of the sacred, on its untranscended immanence. They must insist on the sacramental power of place. A hilltop cross does not symbolize civic piety. It is enchanted. A sacred mountain does not symbolize Navajo cosmology. It is a living god. An old-­growth forest does not symbolize the spiritual

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value of wilderness. It embodies the holiness of nature. From a performative standpoint, these claims demand virtuosic acts of resignification. The “merely symbolic” must be remade into something powerfully sacred or profane. As I learned in researching this book, such virtuosity depends above all on mastering the language of religious emotion. In chapter 2, I draw on interviews with secular activists and their opponents to show how this “emotion talk” works at the most intimate, local level of legal conflict. I focus on cases involving the public display of Christian symbols such as crosses and nativity scenes because these are both the most familiar to observers of American religious politics, and, I believe, the most consistently misunderstood. Although I do not offer a systematic historical account of how this genre of legal drama developed, I explore its roots in mid-­century activism by Jews who contested the resurgence of crypto-­protestant civil religion in the postwar era, and I show how they and subsequent secularists have used the Establishment Clause to question that most unquestionable of political emotions, reverence. I also show how their opponents, in response, have dismissed that questioning as an expression of hatred and resentment, encoded as “taking offense.” In chapter 3, I shift focus from street-­level litigation and lived religious politics to the rarified world of constitutional law. Focusing on what, for many Americans, is the ultimate symbol of law—the Ten Commandments—I show how the Supreme Court has used the rhetoric of reverence and offense to construct a model of civil spectatorship, a model embodied in the curiously disembodied and dispassionate figure of “the reasonable observer.” As I show in a detailed analysis of a landmark case from the early 2000s, Van Orden v. Perry, struggles over the emotional and aesthetic sensibilities of this fictional character reveal the enduring power of secular law to naturalize a distinctly protestant semiotic ideology of the “merely symbolic” landscape. No group knows the strength of this ideology better than Native American religious practitioners. This is why, in chapter 4, I turn from iconic church-­ state battles among the monotheistic “world religions” to the long-­running and largely unsuccessful campaign by Native peoples to protect their sacred sites using the law of religious freedom. This chapter explains how developers and government agencies have drawn on this ideology to reduce place-­based religious practices to an aestheticized “spiritual” pursuit akin to wilderness preservation. Focusing on a recent battle over the use of reclaimed sewage to make artificial snow on an Arizona mountain sacred to several tribes, it shows how many of the same language games used to portray secular activists as overly



Landscapes of Secular Law

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emotional, uncivil malcontents have been used to marginalize Native claimants. The result, I claim, is a form of secular discourse in which vital forms of embodied spiritual practice are rendered legally illegible. With the rise of newly assertive minority religions since the 1970s, policing the line between the “truly religious” and the “merely spiritual” has become an ever more important imperative of the state. Yet even as many groups (such as the Native American tribes discussed in chapter 4) have fought for the former status, others have tried to rid themselves of religious associations that might compromise their position as fully secular and thus fully rational members of civil society. Environmentalists are one such group. In chapter 5, I examine the surprising career of religious rhetoric in environmental law, whose early theorists—including the colorful Supreme Court Justice William O. Douglas— challenged law’s dominant semiotic ideology by treating wilderness as a special kind of sacred landscape, one with agentive capacities that could grant it standing to “sue” for its own preservation. Through a close reading of theoretical texts connected to the landmark 1972 Supreme Court case, Sierra Club v. Morton, I probe these outer limits of secular landscape discourse and ask how the spatial imaginary of American civil religion might be reconciled with new forms of so-­called land-­based spirituality. In all of the cases I examine, the questioning power of secularism destabilizes the seemingly settled concept, so central to place-­based religious conflicts everywhere, of landscape as religious symbol. What are the stakes of this constant questioning? Freedom of conscience, many secularists would say. But freedom of conscience from what? In other secular democracies, the answer is clearly freedom from religious unreason. In France, for example, many secularists treat Muslim women’s dress as a threat to Enlightenment values of individual liberty, rationality, and equality.74 Yet as many scholars have shown, American secularism plays a very different “game of signs.” Here, what many secularists seek is not freedom from religious unreason, but freedom from enforced consent to protestant norms.75 They seek freedom from conformity to a culture of protestant civility, a culture with its own notoriously restrictive “structure of emotions.” Nowhere is this clearer than in the experience and imagination of landscape. Unlike other embodied expressions of religious identity—dress, speech, music, prayer—landscape always implies territoriality.76 It writes belonging into the land. We ordinarily encounter this earth-­writing not as a text that we consciously decode, but as a “structure of feeling,” to invoke Raymond Williams’s famous phrase. Most landscapes speak to the heart, not

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to the head. This is why for American secularists the emotional pull of landscape—the pull of rootedness and place-­bound belonging—poses special political dangers. When wedded to religious orthodoxy, it conveys the threat of dispossession. This is why I insist throughout this book that the secular landscape is both a way of seeing and a way of feeling. Secularity makes sacred space emotionally legible. It is a way of feeling about seeing. Conflicts over religious symbols and sacred sites are only the most obvious examples of this way of seeing at work, thanks perhaps to the extraordinary litigiousness of American society. But its subtle presence can be felt wherever the sacred is in question. How should we feel when we enter a national park? When we pull into a Wal-­Mart parking lot? When we walk on a perfectly manicured suburban lawn? In their mundane, largely unspoken way, all of these landscapes raise questions about our affective perception of the sacred and profane in the cultural landscape, and, inevitably, about whose perceptions are legitimately civil.77 They raise questions about spiritual belonging in the body politic. To see sacred space in a secular way is therefore to see it through the eyes of the stranger. It is to feel estranged by landscapes of religious civility. The sources of this estrangement are not obscure. For much of the twentieth century, American civil religion demanded a specific kind of spiritual spectatorship. It required reverence for the sacred symbols of the nation-­state, to be sure, but also for the sacred symbols of civility writ large: for civilizational “progress” through economic growth and expansion; for the middle landscape of suburban domesticity; for skyscrapers and national parks, arrayed in their providential order. The country’s best-­known hymn to national landscape, “America the Beautiful,” crystallizes this discourse of civic-­nationalist geopiety. Its “spacious skies,” “fruited plains,” and “alabaster cities” serve as ritualistic affirmations of divinely ordained settlement and ownership.78 This providential, spiritually settled landscape is what secular activists have refused to accept.

2 Church, State, and the Tyranny of Feelings

America is a vast conspiracy to make you happy. —john

updike

In 1957 Leo Pfeffer—general counsel for the American Jewish Congress, eminent church-­state scholar, and one of the most influential secular activists of the twentieth century—brought an unusual case against the school board in Ossining, New York.1 He represented Jewish parents who objected to a Christmas nativity scene on the front lawn of a public school. In his suit Pfeffer argued “that the psychological and sociological effect of defendants’ act is to indicate clearly in the minds of the child a preference by the public school authorities of the Christian religion over other religions, and acceptance and endorsement as truth of the dogma of the Christian religion, and a corresponding rejection of other religions.” The Board of Education countered that the crèche was “merely a commemoration of the epochal and historical fact of the birth of Christ” meant “to foster good will among all men at this traditional time of year.”2 America’s Christmas Wars had begun. 23

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Jews opposed the crèche for different reasons. In an affidavit for the case, Baer v. Kolmorgen, Rabbi Emanuel Rackman claimed this “Christological object” would cultivate “an attitude sympathetic to Christianity” in the minds of Jewish children. At the same time, he said, it would give them “feelings of psychological inferiority” and “maladjustment” because it would “create the impression in the minds of the Jewish children that the public school is a Christian school and they, as Jews, are intruders.”3 Rabbi Israel Goldstein, president of the American Jewish Congress, argued that “members of any Jewish community in which such acts take place must feel themselves affronted and offended.” Isidor Chein, a professor of psychology specializing in stigmatization, added that the crèche would instill “cynicism” toward the First Amendment and weaken children’s respect for the religious authority of their parents, creating a sense that they are “tolerated strangers rather than individuals who belong in the school as of right.”4 Privately, Pfeffer was more acerbic. “The Jewish community in Ossining feels extremely isolated and depressed,” he wrote in a letter to Victor Harris of Protestants and Other Americans United for the Separation of Church and State (now Americans United). “There is a rather disquieting cynicism among many of them as to so many protestations by Protestants in favor of separation of church and state. They have not been able to find a single Protestant minister in Ossining who would even remain neutral much less take their side.” Especially disturbing, Pfeffer wrote, was the community’s firm refusal to simply move the crèche to one of the town’s many nearby churchyards. “With a fever somewhat reminiscent of medieval days, the Protestant ministers insisted that Ossining was a Christian community and would not allow the crèche to be put up anywhere except on the public school premises,” he wrote. This “fever” had an even darker side. In an internal memo to colleagues, he noted that a Jewish child had reportedly been punished for refusing to kneel before Christ in a recent pageant.5 Yet Pfeffer seemed to see a silver lining around the cloud of intolerance that hung over Ossining and the many other places where such displays were increasingly igniting conflict. “What is especially significant is the courage and forthrightness of the Jewish community in these various places,” he wrote in another memo. “This is a remarkable and refreshing change from its timid and silent resignation which had been practiced by the Jewish communities for many decades.”6



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The court, however, was not impressed by this newfound pluck. Rejecting a motion to force removal of the crèche, Judge Frank H. Coyne of the New York Supreme Court wrote that the plaintiffs’ allegations were “wholly speculative and vague.” Pfeffer had not shown “that the religious practices of plaintiffs have been interfered with,” Coyne wrote, “or that their right of worship in accordance with their own dictates has been suppressed or curtailed. Nor does it appear that defendants have endeavored to foist upon plaintiffs the principles of any particular religion.” He then continued in a more polemical vein: The constitutional prohibition relating to separation of church and State does not imply an impregnable wall or cleavage completely disassociating one from the other. While it is necessary that there be a separation of church and State, it is not necessary that the State should be stripped of all religious sentiment. It may be a tragic experience for this country and for its conception of life, liberty and the pursuit of happiness if our people lose their religious feeling and are left to live their lives without faith. . . . The Constitution does not demand that every friendly gesture between the church and State should be discountenanced; nor that every vestige of the existence of God be eradicated.7

In other words, the plaintiffs were not behaving like good Americans. They aimed to strip the state of “religious sentiment” and its people of “religious feeling.” They rejected “friendly gestures” between church and state. They opposed “the pursuit of happiness.” They were not just legally wrong. They were emotionally defective. After a trial, another Supreme Court judge, Elbert T. Gallagher, dismissed the case entirely. He began his opinion by stating, without elaboration, that the Ossining crèche committee consisted of Catholics, Protestants, and Jews, as if this proved its religious impartiality.8 Although the crèche is “undoubtedly a religious symbol,” Gallagher continued, we are all free to interpret its meaning according to our own religious faith. If any public body were to limit that freedom or if any public institution were to give instruction as to its meaning there would, unquestionably, be a constitutional violation. That, however, is not this case. Here the school board has done no more than to make a small portion of its property available for the display. To that extent they have accommodated a religious, though nondenominational, group.9

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Although Gallagher acknowledged in passing that “what is symbolized by the Crèche is inconsistent with the religion of plaintiff and his children,” he insisted that no one could reasonably believe that such a symbol is injurious. Privately, at least one Christian resident disagreed. In a 1959 letter, one Mrs. Eleanor Cornell of Mamaroneck offered support for Pfeffer’s cause: “As a Christian I deplore this crèche craze, which smacks so much of idol worship, although this is denied by many well-­meaning Christians.”10 The Ossining case was no isolated flare-­up. By the late 1950s, anger over Christmas celebrations had been simmering in northeastern cities and suburbs for at least a decade. Once viewed by the Protestant majority as an exotic Catholic import, nativity scenes had become a “nondenominational” holiday tradition just as increasing numbers of Jews were moving into the suburbs and taking a more prominent role in civic life.11 As Pfeffer documents in his classic legal history, Church, State, and Freedom, New York and Boston weathered major Christmas controversies during the late 1940s over carols and decorations in public schools. In Chelsea, Massachusetts, a Jewish family was forced to go into hiding after petitioning the school district to simply reconsider its policy on mandatory caroling.12 Like Catholics and other Others before them, Jews were confronting a de facto Protestant establishment, one ingrained in the architecture of everyday public life. Despite Judge Coyne’s fear of a country “stripped of all religious sentiment,” Pfeffer was no freethinking atheist. The son of a Hungarian Orthodox rabbi, he was a practicing Jew and ferocious enemy of both religious nationalism and indifferent secularity.13 Despite his evident concern for the psychological and social well-­being of Jewish children, Pfeffer’s interest in holiday displays transcended the quotidian troubles of his own community. He believed that America in the 1950s was in the midst of a great revival, not of Protestant Christianity but of a “new state religion,” “a hybrid which borrows from all.” Though cloaked in the symbolism of nondenominational Christianity and civic responsibility, this religion preached nothing more than social conformity and obedience to the state. “This strange religion,” he wrote dryly, “this patchwork quilt of here a little, there a little, this borrowing of what is deemed ‘common’ to all the religions is slowly, yet steadily evolving into a new religion, one that might be called The Faith of the Lowest Common Denominator, or more simply, the Public School Religion.” Ultimately, no religion was safe from this secular civic faith. To protect real religions, he wrote, “the task of eliminating religious illit-



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eracy and combating secularism in society must be left to the home and the church.”14 In this battle to protect religion from state and society, Pfeffer saw that place played an important role. At a 1949 conference of Jewish leaders on religious observances in public schools, he stressed that most citizens are compelled to send their children “to this common place, to this public place,” and when teachers and administrators cloak these places in the symbolism of a particular faith, they give that faith the State’s “stamp of authority.”15 For a child, especially a child struggling to adapt to a new social environment, no amount of official rationalization could change this stark material reality. “These symbols through centuries of use and adoration become invested with a meaning that transcends logic,” he wrote. “. . . Attitudes affecting religion perhaps more than attitudes affecting other areas of commitment are shaped in considerable measure by the atmosphere and tone of surrounding environment.” Indeed, “few state acts could be more intrusive or could more effectively propagandize on behalf of a particular religious affiliation” than the display of religious symbols, which “generate a particular religious tone, a feeling, an attitude of reverence on the part of those who observe them.”16 Such symbols were not just isolated speech-­acts. They created emotional atmospheres. In fact, Pfeffer suggested, it is “tone” and “environment”—not creed or belief—that forms the essence of religion. In a characteristically trenchant 1957 memo on Decalogue displays in public schools, he argued: Religion cannot be reduced to its rational meaning and no school board can decree that it ought to be. Religion sanctifies not only ideas but equally forms and expressions. Phrasing and style are matters of crucial importance and frequently become transmuted in matters of conscience. The formal religious observances and expressions found in every creed are not indifferent vessels of which “the essential meaning” of religious precepts are a thing apart and into which they may be poured. Matters of religious devotion above all cannot be paraphrased. Their meaning is at one with the form and shape in which they occur, and any alteration, any tampering by an outside force necessarily entails a tampering with the fundamentals of belief. The idiom of the religion is in fact the religion itself. And the state may not decide to purify religious practice or religious doctrine or drop from their content matters which it views as extraneous or unimportant.17

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Like bodies, images, and sounds, spaces speak for god. Sign and signifier, ritual and belief, place and faith: each is consubstantial with the other. To “reduce religion to its rational meaning” (in this case, to depict the Ten Commandments as a “nonsectarian” list of moral rules), is to corrupt the essence of belief. For someone so historically and sociologically aware, Pfeffer’s choice of the term “indifferent vessel” was probably no accident. To insist that religious meanings are “at one with the form and shape in which they occur” was to boldly challenge a commonsense indifferentism deeply inflected by protestant semiotic ideology.18 Although much has changed in American religious politics since 1958, in cases like Baer v. Kolmorgen we see the emergence of a remarkably durable cultural pattern. We tend to think of this pattern in abstract spatial terms as a tug-­ of-­war between Christians and secularists across the public-­private divide, an idea captured in Father Richard John Neuhaus’s famous image of “the naked public square.”19 According to this way of thinking, symbols like the nativity scene are just that: symbols. They are a convenient proxy for what really matters: the broader, abstract struggle between religious and secular authority. They are pawns in a semiotic game. Pfeffer knew better. He understood that religious symbols are a potent physical presence in the lives of ordinary Americans, a complex and deeply meaningful idiom of religious expression. He understood that like other religious idioms—prayer, pilgrimage, dress, diet—these symbols are intimately connected to embodied religious experience, indeed, that such experience is part and parcel of religious selfhood. He understood that our religious subjectivity, especially during childhood, is molded by our sensory engagement with things, people, and places whose power impinges on us in ways we cannot fully control: incense wafting from a censer, light through a stained glass window, the recitation of a prayer. And he understood that to secularize these symbols in the name of civic unity meant denying all of this. In this chapter, I explore these intimate conflicts of place-­bound religious feeling.20 Over the course of several months in the mid-­2000s, I visited six urban and suburban communities in New England, California, and the Midwest, interviewing lawyers, activists, and ordinary people embroiled in legal battles over public displays of Christian symbols. Some of these battles were large and long-­lasting, attracting national attention. Some were small and obscure. All aroused deep, often painful passions. They pitted Jew against Catholic, atheist against evangelical, evangelical against evangelical, liberal against



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conservative, neighbor against neighbor. None had particularly happy endings, for law in these cases is mostly a zero-­sum game. Either the symbol stays or it goes—or, as in the case of the Mojave Memorial Cross, it stays under new ownership, often the most divisive outcome of all.21 What I found in these cases was a surprisingly complex, multilayered discourse about the nature of sacred symbols and the feelings they arouse. As retold by those I interviewed, they were a kind of emotional contest, a drama of feelings. In public, symbol supporters cast their opponents as “affect aliens,” to adapt Sara Ahmed’s fitting phrase: hypersensitive killjoys who hated the happiness and good will that public religion can bring.22 Symbol critics cast their rivals as either evangelizing zealots or reactionary tribalists who cloaked their fear of religious outsiders in the garb of civic piety. In my private conversations with both, however, I heard a different story. Secularizers spoke not of psychic harm or “hurt feelings” but of their principled opposition to Christian imperialism. Far from hypersensitive malcontents (or “eggshell atheists,” as conservative pundits sometimes like to call them), these men and women portrayed themselves as thick-­skinned and often deeply religious rationalists. The symbols themselves did not cause them offense, they insisted; it was their opponents’ “blind” devotion to them, a devotion calculated to advance the geopolitical and economic interests of the “Christian Right” or entrenched local powers. Like many conservatives, they complained of the “tyranny of feelings.” But for them, the feelings that tyrannize were not of repugnance or resentment, but of Durkheimian “effervescence,” the idolatrous self-­worship of the tribe. Defendants, on the other hand, portrayed themselves as victims of a Jacobin crusade to censor religious expression. They blamed the American Civil Liberties Union and other national groups for bullying well-­meaning local communities into submission and, more seriously, for seeking to strip Christians of their right to celebrate their faith. To secularists they imputed a range of iconoclastic passions, most unforgivable of which was (not surprisingly) the outright hatred of religion. Yet they condemned this hatred not as a sin, but as a dangerous logical mistake, a kind of ontological delusion. Symbols cannot injure, they insisted. Landscapes cannot hurt.

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EXPRESSING LIBERTY, FEELING REPRESSION

The title of this chapter was taken from the website of Mark D. Roberts, a Presbyterian minister, author, and blogger on religious affairs.23 In a 2004 commentary on a lawsuit over a small cross in the Los Angeles County seal, Reverend Roberts blasted the ACLU for sacrificing historical awareness in the name of religious sensitivity. By so zealously protecting non-­Christians from feeling unwelcome, Roberts fumes, the ACLU had imposed nothing less than a “tyranny of feelings” on innocent Angelenos. “Many critics of the ACLU have alleged that the organization has a strong anti-­Christian bias,” he wrote: This may well be true, and may well help to explain the ACLU’s unreasonable behavior. But [their actions] also demonstrate that the ACLU has its own religion, the religion of feelings. If one person is offended by something, even if that person doesn’t have good reasons for being offended, then that person’s feelings trump reason. The problem with the tyranny of feelings, apart from its denigration of logic, is that people’s feelings will be all over the map. Leave the cross on the seal, and, theoretically at least, somebody might feel unwelcome. Take the cross off the seal but leave the pagan goddess, and others will feel unwelcome. Who’s to say, in the end, which feelings should count the most?24

These are common complaints from the right and center of American religious politics, but Reverend Roberts formulates them in an especially telling way. While he believes the cross is an “objective representation” of the city’s Christian history, he does not simply argue that feelings are “too subjective” to give cause for legal action. Rather, he paints a picture of the ACLU as a cabal of religious fanatics hell-­bent on conversion. They are the uncivil, intolerant Other. Not only do they exhibit a “strong anti-­Christian bias,” they are “unreasonable” and their lawsuits “denigrate logic.” Worst of all, they worship a false god, the God of Feelings. By calling their politics a “religion,” Roberts claims the ground of secular neutrality. He also invokes a distinctively Anglo-­Protestant form of liberal rationalism, one that equates tyranny with idolatrous passion and fractious self-­regard. It is the ACLU, not their Christian enemies, who are the true theocrats. Because law is the primary arena of American religious conflict, it is not surprising that many see litigiousness as a major symptom of incivility. Talking



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with one man who was active in defending an embattled hilltop cross, I heard this view expressed quite explicitly. “I think that people were too respectful of religious symbols to come in and sue over them,” he told me. “I think that people were more civil in the ’50s and even into the ’60s, and I think that civility went away with the tactics that worked against the Vietnam war.” Others told a similar story, though with the moral trajectory reversed. According to them, the civil rights movement emboldened religious minorities to challenge social practices whose incivility they had long borne silently, and these challenges were evidence of a wider civilizing process in American society. They often told this story in the passive voice, saying, in effect, that the world just changed after the sixties and it simply no longer made sense to identify the nation with Judeo-­ Christian tradition. Getting rid of school prayer and crèches was just part of the secularization process, or should have been. My point is that emotions do complicated cultural work in struggles over sacred iconography. There is the immediate affective environment created by the icons themselves, which is experienced in radically different ways. And then there is a metalevel discourse of emotion, supplied in part by law, which is remarkably uniform and which does not necessarily correspond with the phenomenology of lived religion. The latter can be thought of as a kind of disciplinary mechanism or tool for social regulation. This tool is made for cleaving, not connecting. In The Civil Sphere, the cultural theorist Jeffrey Alexander describes law as a “powerful conduit for civil morality” and a “highly significant boundary mechanism for civil society.” Armed with the Constitution, social actors not only can remedy immediate, particular wrongs, but also can use the dramatic exemplarity of law to draw universal lines between civil and uncivil behavior. By exploiting the symbolic force of law, they can “create possibilities for justice,” as Alexander puts it. This requires persuasively performing the binary codes of civil discourse—­constructing the motives and methods of an uncivil Other as dangerous and polluting, as threatening to the civil center, even if that center is, in fact, at the margins of society. “As the master blueprint for every legally based social organization,” Alexander writes, “constitutions are particularly concerned with articulating the suspicions about others that mark the dark side of civil discourse; indeed, they are institutions for keeping that dark side under control.” As a cultural institution, law works primarily by “demarcating anticivil behavior.” Needless to say, this process of cultural exclusion typically benefits those in power, but not always. At key moments in American legal history, oppressed minorities have used law

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as mechanism of “inverse stigmatization,” redefining formerly acceptable behavior as a threat to the civil sphere.25 Because religion is thought to belong to the interior realm of “feelings,” emotional discourses play an especially important role in the law of religious freedom. This is fairly obvious in the domain of free exercise, which has long been used to demarcate anticivil religious behavior (polygamy, animal sacrifice, drug use, and so on). But they play an equally important role in the kinds of Establishment Clause cases I explore here, which since the early 1980s have hinged on determining a “reasonable” response to state-­sponsored religious expression (what often goes under the label of “civil religion”). Encoded in this notion of reasonableness are a number of emotional norms: benevolence, equanimity, loyalty, reverence. For secularists, the challenge has been immense: to stigmatize these norms, making happiness seem like hatred, harmony like discord. For this re-­signification to succeed, however, there must be widespread agreement on whose norms are being stigmatized. Are they those of public institutions such as the state, or of the private citizens who believe the state speaks for them? Under the weight of numerous cultural and political pressures that some have called postsecularism, that public/private distinction appears to have been collapsing in recent decades. As a consequence, it has become easier to depict liberal, pluralistic, “Pfefferian” secularism as an evil campaign to stamp out benign forms of religious expression. In a time of increasingly “ambient faith,” to borrow an appositely spatial term from the anthropologist Matthew Engelke, religious privatization looks more and more like a losing game.26 Be that as it may, public space is still an important arena for emotional boundary work. Struggles over the place of religious symbols are still struggles over the civility of religious feelings. They are struggles to define the religious sentiments and sensibilities proper to “tolerant,” “reasonable,” “democratic-­ minded” citizens, and thus who deserves to be included in civil society. By “religious sensibilities,” I mean two things: first, a set of capacities to respond appropriately to such displays; second, a propensity to be shocked or offended. “Sensibility” connotes both an ability to be moved, a kind of “emotional intelligence,” and a moral limit to the kinds of things one is willing to tolerate. In contemporary American usage, to speak of someone’s sensibilities in the latter sense is usually to show contempt for their values. For many Americans, to demand that a religious symbol be removed from public space—especially a sym-



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bol of Christian “civic tradition”—is to adopt a fundamentally anticivil attitude. In this respect, landscape functions as a powerful tool for excluding supposedly uncivil Others from public life, and thus for setting the limits of pluralism. Citizens, to count as such, must possess certain visual and emotional sensibilities. They must be civil observers. Law is a powerful (though largely unrecognized) tool for cultivating such sensibilities. By dramatizing a conflict between civil and uncivil vision, law trains the eye to talk to the heart.27 LANDSCAPES OF INCIVILITY

Sitting across the table from one especially ardent defender of Christian tradition on a dark January day in New England, I saw how intense this drama of vision could be. I was speaking to a woman from an affluent New England suburb who had fought to keep a crèche installed on her town square during Christmastime. Voice quavering, she told me about the moment when she realized that not only a cherished tradition but the very soul of her community was endangered. Like many others I interviewed, she depicted the case as an attack not on her community’s Christian heritage, but on freedom of religious expression in general. It was an act of censorship by secular zealots. “They were offended,” she said of her opponents. “Now, that’s an important word: offended. Because people get offended today. And when they get offended, they want to do away with whatever they’re offended by.” After local government voted to move the crèche to the grounds of a nearby church, this self-­described “little old homemaker” became an activist. I said to myself, “This is not America anymore.” America is when we all can live free! I don’t care if somebody puts a menorah up! I don’t care if somebody puts something else up. It doesn’t bother me! . . . That’s what America is. We can all live together, without offending your neighbor!

But when she learned of a proposal to surround the crèche with ironic monuments to pagan gods, she said that for the first time in her life, she felt truly oppressed. “I never knew that Christians were so hated in this country until this happened,” she told me. “And it really broke my heart, because I never felt hate before. I never felt hate!” To her, profaning the crèche made a mockery of tolerance and trampled mutual respect. “I was upset,” she told me. “I couldn’t sleep.

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And I said, ‘My God. What is this country becoming? Is it going to be a secular country where we’re not going to be allowed to express our feelings in public? It can’t happen. It just can’t happen.’” Her choice of words was telling. It reflected the dominance of what Charles Taylor calls “expressivism,” faith in the absolute primacy of individual expressive rights as a guarantor of spiritual authenticity.28 Ironically, her belief in the sanctity of “expressing our feelings” was quintessentially secular, though resolutely antisecularist. For this person, as for many others I talked to, a “secular country” was one that profanes the sanctity of religious sentiment, not religious belief. It was therefore a country that seeks to kill civil solidarity at its emotional root. For many secularists, however, it was precisely these feelings of civil solidarity, conveyed through symbolic landscapes, that threatened the most important secular value of all, pluralism.29 They spoke of the rights of religious minorities and nonbelievers to feel included and respected, to feel that they belong in public. Expressed through Christian symbols, civil solidarity cannot help but alienate and disparage, or so they claimed. Both sides decried the tyranny of undemocratic feelings. The real question, for them, was not whether but which feelings tyrannize, those of solidarity or those of alienation. In one West Coast town beleaguered by a long-­running cross controversy, I spoke to a man active in the local Jewish community. An opponent of the cross, he, like many others I interviewed, insisted that it did not personally “offend” him. Asked to boil the case down to its essence, he said it was about protecting religious and ethnic minorities from, “to put it politely, the excitement and zeal of the majority.” He elaborated, echoing Pfeffer’s remark on the “medieval” atmosphere in Ossining: I don’t see it as too much of a personal threat. But, Jews in particular are an increasingly small minority in the United States, and there is an increasing evangelical, fanatic push. And our history tells us that that is a bad combination. So as a community, we take it very seriously. . . . So we’re never going to push it all the way back to neutral. Never, ever, ever, ever in this land. The only place where we have that kind of ability to relax is in Israel. And even there, you can’t relax. So, while I don’t see it as an immediate threat . . . we need to stand up against it now. In a subtle, and diplomatic, and friendly way, in a coalition-­building way.



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As this man made clear, religious symbols, especially “ur-­symbols” like the cross, can radiate condensed historicity. The “evangelical, fanatic push” behind the cross conveyed a multivocal menace. It spoke of crusades, pogroms, lynchings, and worse. It was the primal threat of Durkheimian effervescence, channeled through anti-­Semitism. While he did not feel “personally threatened” by the cross or its supporters, he warned that tolerant people must “draw the line” somewhere, lest the mob take control. And although he framed the immediate danger in terms of anti-­Semitism, he saw the broader threat as universal. “You know, like my Latino friends: they need to understand that they are a minority, too,” he told me: The same law that I’m saying says that cross can go, is the same law that says that they can’t be forced to become Protestant if they’re Catholic. . . . It’s protecting them as much as it’s protecting me. And it’s the same one that says they can’t be discriminated against because of the color of their skin, or their national origin. It’s the same principle.

Nativism, racism, anti-­Semitism: all embodied in idolatrous zeal. His opposition to the cross was explicitly and necessarily overdetermined. Perhaps this is one reason why fighting religious symbols is such a powerful tool for mobilizing secular activists. To fight them is not just to fight the Christian Right, but “intolerance” itself. Such fights can cause festering emotional wounds. Consider the following case: a medium-­sized, working- to middle-­class town on the outskirts of a big northeastern city, with an old guard of second- and third-­generation Catholic immigrants and a small but steady influx of new immigrants from Asia and Latin America, plus a growing number of Jews and religious “nones” exiting the urban core. There I spoke with leaders on both sides of a conflict over a crèche that had been displayed for decades on the front lawn of a local school. One opponent of the display—a self-­described “townie,” with deep roots in the local Irish Catholic community—said the crèche never really bothered her until she became involved in a community forum against hate and violence, formed after a school shooting in another part of the country. Her own children had been relentlessly bullied in the local schools, she said, and she had grown increasingly dismayed at the hatred and intolerance she saw growing in the post-­9/11 environment. When a local resident complained about the crèche in a local media outlet and met with a flood of vituperation, something snapped.

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“It took me a while to come around, to be bothered by it,” she said. “You know, because I grew up in town.” For locals like her, she said, the crèche was “invisible.” But once she saw it through the eyes of non-­Christian outsiders, it became painfully, inescapably obvious. “As [the lawsuit] got publicity,” she said, “there were Jewish people that stepped forward saying, ‘I’m so glad you took that on.’ We always had a small Jewish community that hated that crèche. But they didn’t dare [complain]. Because—look, the day we filed the suit I ran home. I was afraid I was going to get a brick through the picture window.” For her co-­plaintiff, a devout Protestant from a liberal denomination, the problem was as much national as local. For progressives in the years immediately after 9/11, she said, “things seemed so hopeless. It seemed too hard to [make] a difference. It [was] like, in my little corner of the world, I can help stem the tide of this trend toward basically nationalizing religion.” Like her “townie” ally, she saw support for the crèche as symptomatic of a political epidemic. Around the time of the case, she put up an antiwar sign in her front yard. It was torn down and her house was vandalized. “That kind of fervor is right below the surface here,” her friend commiserated, “and it can come out on gay issues, or the crèche, or war.” “Fervor” is a powerful word, reserved for special cases. In this town, my interlocutors agreed, it arose from anxieties about local identity. “My guess is that when the crèche first went up 80 years ago, it was probably a uniting feature for different Christian groups, immigrant groups,” the “townie” said, but today there are significant numbers of South Asian immigrants and others to whom the crèche is totally alien. “They’re trying to establish whose town it is,” she said of the Christian old guard. “I think it’s about a power structure that hasn’t caught up with the changing demographics,” her friend replied, laughing ruefully. “And they’re kind of like the death gasps of a bygone era.” Later she added: “People ignore that there are people in their community who think certain traditions are wrong! It’s like the tradition of segregation. You know, ‘Whoa! We’ve had a tradition, let’s keep it.’ Well, you don’t get to keep it. It was wrong.” Not surprisingly, such accusations gall the accused. “It’s a thing of joy, and that’s it!” insisted a resident of an overwhelmingly Catholic New England city, referring to his local crèche. When he was sued, he told me, only one thought crossed his mind: “These people can’t be—nobody could be mean enough.” People of all ethnic and religious background were incredulous, he said. This was their tradition, their town’s tradition. “It was always something of enjoy-



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ment to people,” he said, “never a whisper of any trouble.” For this die-­hard Democrat, the notion of joining forces with the Christian Right was equally infuriating. “You know, there were a lot of people who agreed with our legal position that I couldn’t stand!” he said. “Don’t put me together with Pat Robertson. . . . That’s not what we were about.” For him, as for many others I interviewed, the desire to suppress such a benign tradition was, quite simply, insane. “You feel that it’s always going to be there. You feel that, because you’ve grown up with it, and you’ve been taught that, that nobody can take that away from you, you know?” another crèche defender said. “And when something does happen you are so crushed that it’s like, ‘What happened!? I just can’t believe it. This isn’t my country!’” From far-­Right fundamentalist pastors to nominally Catholic liberals, every defendant insisted that religious freedom was on the line. “We’re not Nazis, we’re not the Gestapo,” one crèche defender and local politician insisted. “We don’t want to impose our beliefs on someone that doesn’t want our beliefs.” When I asked how she felt about claims that America is a “Christian nation,” she was adamant: “That’s wrong. That’s very, very wrong. I resent all that. . . . Because I think that what’s important is what individuals believe, and I think that that’s terrible to try and impose Christianity on everybody, and all of that Christian wave stuff on the radio and all that—that worries me.” Others I spoke to were not so worried. But even the most religiously conservative cast themselves as defenders of tolerance, individual freedom, and mutual respect. Of course, few people think of themselves as fanatical or intolerant. These sins always belong to others. When I asked the same local politician how she felt about being sued, she said, tears welling in her eyes, “This is America . . . . That’s what we’re all about. We have a right to express our feelings. . . . I feel like my rights have been robbed. I feel like this is not America.” SEEING CIVIL RELIGION

Of course, many religious conflicts follow much the same emotional logic: my expressive rights versus your censorious passions. What makes these cases different? For one thing, they are about seeing. And not just seeing, but seeing public space. By virtue of their location, these icons speak for the political community. They are declarations of civic identity. Nowhere has such speech caused more conflict than in La Jolla, California,

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home to probably the most prominent free-­standing cross in America, atop Mount Soledad. Driving into San Diego on Interstate 5, you can glimpse its white concrete arms reaching out from the chaparral. From downtown La Jolla and much of the surrounding area, it is invisible. From higher elevations, however—most impressively from the mountaintop itself—the cross dominates the landscape, creating the appearance of a true sacro monte (fig. 2).30 Located at the highest point in San Diego County and standing roughly 30 feet tall from base to crown, it overlooks a panoramic swath of lush coastline, urban sprawl, and interior desert. When illuminated, it can be seen for many miles. San Diego is a military town. It is also a stronghold of conservative politics and evangelical Christianity. La Jolla, a bastion of genteel, old money conservatism, has a long and well-­known history of anti-­Semitism. Until fairly recently, the so-­called La Jolla covenant, a tacit agreement between realtors and homeowners, is said to have barred Jews from buying homes in the area. When the University of California established its UCSD campus there in the mid-­sixties, things changed dramatically, and today La Jolla is the center of San Diego’s Jewish community. But the memories of exclusion and ostracism remain fresh in some quarters, and they form an important part of the complex social backdrop to the Mount Soledad controversy.31 The present cross was dedicated in an Easter ceremony on 1954 and has served as the site of sunrise services on every Easter since. Although it was dedicated to veterans of World Wars I and II and the Korean War, there was nothing included at the site to mark it as a war memorial, nor are there any records of services conducted there on Memorial Day. As with the Mojave Memorial Cross, the core legal question—which has been debated now for longer than any other church-­state case in American history—is whether the cross is a religious symbol or a secular war memorial. There is some patchy historical evidence that memorial services took place in the decades prior to the lawsuit, including military-­themed Easter celebrations. But for the most part, these uses left little tangible evidence. When a local activist, himself a Vietnam war veteran, filed suit in 1989, a decade of vicious fighting ensued. Then, in the late 1990s, the memorial association adopted a new strategy: it began to build a set of six concentric walls around the base of the cross (fig. 3). The walls hold roughly 3,000 black granite plaques purchased by donors and engraved with the names and photos of war veterans, both living and dead. The result—still only partly built—can only be described



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Figure 2. The Mount Soledad Cross and war memorial. Photo by author.

as arresting. Walking around the cross, one is confronted with image after image of young faces, some posing for official photographs in military dress, others caught in a candid moment. Standing in this windswept spot high above the Pacific Ocean, overshadowed by this looming icon, one cannot help but feel moved by this intimate contact with death. In the aftermath of the September 11 terrorist attacks, the cross became so divisive that people began worry openly about violence erupting on the mountaintop. Local churches held massive rallies at the foot of the cross, complete

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Figure 3. The Mount Soledad Cross and war memorial. Photo by author.

with giant video screens, live music, and speeches by politicians and church leaders. Talk radio hosts promised to chain themselves to the cross if courts ruled against them. National Christian organizations made its salvation a cause célèbre. In his book God on Trial, the political scientist Peter Irons includes a statement by Philip Paulson, the lead plaintiff in the Mount Soledad case and, by his own account, “the most hated man in San Diego.” Paulson, who died in 2006, was an outspoken and occasionally belligerent atheist. Describing a meeting with the local director of American Atheists and others involved in the early stages of the case, he explains what motivated him to sue: “I told them, Every time I go up to Mount Soledad I have two questions: what is it, and where is it? What is it? It’s the unmistakable symbol of the Christian religion. And where is it? It’s in the middle of a public park. I go around town and see all the graffiti that gangs spray on walls and bridges. To me, the cross on Mount Soledad is graffiti; the Christians are marking their turf, and the public park is everybody’s turf.”32 Many of the plaintiffs I interviewed in other cases echoed Paulson’s sentiments. They were not hurt, they insisted; they were angry. And they were angry because the other side was declaring ownership of public space and, by extension, the nation.



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Yet in interviews with their opponents, I was struck by their impassioned denial of this claim. “Turf ” had nothing to do with it, they insisted. These lawsuits were simply about inflicting pain on people of faith. As one Jewish cross-­ supporter in another California city told me: [If ] you take that cross down . . . the people of that religion may be insulted—may be insulted—because of it. And that would be a shame, to insult the millions of people in this country who are Christian. . . . What a disgusting thing to do: to insult millions of people, to hurt them, to make them feel like second-­class citizens, to make them feel like they did some‑ thing wrong, to make them feel like they don’t belong here in this country. There’s no reason for that!

For many conservative Christians, on the other hand, citizenship and inclusion were beside the point. Their God was being attacked. As one evangelical pastor told me: We don’t go up to that hill to worship that cross. That symbol is probably the most horrific symbol to a Christian. You might as well put an electric chair up there. But it becomes something else for us. And it speaks a lot to what our savior did for us. Okay? And when you start attacking the cross, then what you’re saying is . . . well, you’re attacking our God, is what you’re doing.

Evangelical Protestants—roughly a third of the American population by some counts—are, almost by definition, highly “crucicentric.” They practice a style of Christianity that is intently focused on the Passion and its salvific message. Counterintuitively, evangelicalism is also widely understood to be an intensely personal, private faith. Many if not most evangelicals decry attempts at mass conversion.33 Secular activists often assume the opposite, even when they acknowledge the existence of doctrinal and cultural diversity within evangelical ranks. This assumption frequently leads secularists to misread Christian attitudes toward public symbols of faith. For example, a Pentecostal minister told me: I do not mind other people having their view on religion. Everyone has a right to their own convictions. But when they use their convictions to take out any

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symbol of my faith, then I become defensive. . . . Some people felt uncomfortable seeing the cross. And my feeling is that they are plain prejudiced against the cross. They just don’t want to see a Christian symbol because they are offended by the Gospel.

For this man, as for others I interviewed, “defending the cross” was a scriptural obligation, not a personal choice. “I am a pastor, and as a Christian I am a confirmed believer, and I do not compromise the message of the Gospel. I believe in the exclusivity of the person of the Lord Jesus Christ. He is the unique savior of the world. There is no other way. I believe what he said. And that’s something that I’m committed to.” He dismissed the idea that a large, free-­standing cross on public property could be interpreted as making a territorial claim. “They are fishing for an argument,” he said. “And that fishing will continue forever, because the cross is an offense to some people. The Bible says, ‘The cross is an offense to them that are lost.’ But that’s their choice! So let it be.” Separationists’ ultimate objective, he said, was to censor Christians and to “advance their religion, whatever it is—of not having Godly values and principles as the underlying foundation of the nation.” Without ethnographic context, it is easy to caricature such views. For example, it might surprise some readers to learn that this man was an immigrant, a person of color, and pastor to an ethnically diverse, working-­class congregation. What troubled him most of all about the suit to remove the cross, he said, was its effect on the “harmony” of his religiously diverse community. It just happens to be a Christian symbol. Now, historically, the cross is not a Christian symbol. The cross is simply a symbol of murder. . . . And I hope and pray that we can learn to live and let live and not hurt other people simply because they believe differently. The message of the Gospel cannot be forgotten. The message of the Gospel is an invitation to come and experience the love of God—experiencing the love of God, as Jesus has proclaimed. Now, we will continue to proclaim that message, and it’s up to others whether they want to accept or not accept. . . . I mean, I have Hindu friends, Buddhist friends, Muslim friends—all these religious people, [I] share their views, I participate in interfaith activities and ceremonies where they all express their views. I’m not offended by what they say! They are sharing their belief system. And I have decided to leave them alone, and let them enjoy and experience what they think is . . . right.



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For this person, displaying a cross in public space and “proclaiming belief” were one and the same. Ironically, his cross had been erected decades earlier during a period of intense Protestant anxiety about immigration by religious outsiders. It had been mostly ignored for many years. For most local residents, it was simply a landmark—one, perhaps, that aroused occasional feelings of reverence or irritation, but a landmark nonetheless. Once attacked by church-­state separationists, however, it became intensely sacred. Its powers of salvation were revitalized. PLACES THAT WOUND

The semiotician Roland Barthes famously defined a photograph’s punctum as the “element which rises from the scene, shoots out of it like an arrow, and pierces me.” This “prick” or “wound” is experienced as a noncoded accident, a physical emanation that pushes the viewer out of present time and place. “Once there is a punctum,” Barthes writes, “a blind field is created (is divined).” This “blind field” refers to a world outside the frame in which the subject “continues living”; it makes the punctum “a kind of subtle beyond,” a portal to a “whole life” external to what is seen. This “power of expansion” is often metonymic. To illustrate this power, Barthes gives the example of an image that transported him: a photograph of a blind gypsy violinist being led by a boy down a dirt road, with the road as the punctum. He writes: Its texture gives me the certainty of being in Central Europe; I perceive the referent (here the photograph really transcends itself: is this not the sole proof of its art? To annihilate itself as medium, to be no longer a sign but the thing itself?), I recognize, with my whole body, the straggling villages I passed through on my long-­ago travels in Hungary and Rumania.34

This metonymic transformation from sign to “the thing itself ”—in this case, from a road to a place—is affectively intuited “with the whole body.” What makes the punctum impossible to name is its uncontrollable, excessive referentiality. It transports and transfigures (and is thus “divined”). This capacity is not limited to photography or even to visual culture in general. It is also found in material, inhabited landscapes, both “natural” and “built.” As the anthropologist Keith Basso writes, landscapes generate “fields of meaning” and “aesthetic immediacies” that make collective memory and cultural identity palpable.35

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This is the source of landscape’s unique power both to embrace and to alienate. The punctum of place can bring us home or send us into exile. What is the punctum of a hilltop cross? For an evangelical Christian, it could be the moment of rebirth. For a veteran, it could be the loss of a comrade. For Jews and other historically oppressed religious minorities, however, it is liable to be a moment of estrangement. Consider a conversation I had with a plaintiff in another case; call him “Tom.” Raised in 1950s and ’60s America by Jewish Holocaust survivors, Tom and his family lived in the shadow of a large government building that lit its windows in the shape of a cross every Easter. Even at the age seven, Tom told me, he knew there was something “fundamentally wrong” about this kind of display. An outspoken atheist today, Tom told me he was still “very much in contact with being Jewish, whatever that means.” As a member of a group that has “suffered at the hands of people who felt that we killed their savior,” he says he was naturally sensitive to issues of church-­state separation. This, he implied, could partly explain why he chose (at the invitation of a national separationist group) to sue his city over a cross that had stood for decades in a public park. At the same time, however, he insisted (irreverently) that basic political principles were at stake: People should have freedom of religion. . . . And if they want to sacrifice chickens, they can, you know, [do] whatever. They have that right! But it should not be public! It should be like, I don’t know, sex. Or [the] bathroom. Or something like that. You know: it’s between you and what you believe in.

For Tom, it didn’t matter if a cross was erected yesterday or a century ago. What mattered were the motivations of those who defend it today. Comparing them to door-­to-­door evangelists, he said: There’s this need to push it on other people, and get other people to believe in the same way. It produces a very negative reaction in me. And, um, I find it offensive. I’m offended by it. . . . And I guess also the fact that it’s so irrational. I was raised basically by rational parents, and I was raised to look for rational explanations for things. And the fact that people could be swayed by such, such irrationality—it’s a stupid, stupid argument. So that really bothers me.

Vacillating between liberal tolerance and contempt for the “stupidity” of religion, Tom expressed the ambivalence of one caught between two kinds of secu-



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larism, one pluralistic and the other resolutely disenchanted. People can do whatever they want in private, he insists, however foolish or base. But to bring such beliefs into the public domain is to curtail the freedoms of others. “It’s between you and what you believe in,” he asserted, invoking the sanctum sanctorum of individual conscience. In the same breath, however, he invoked the figure of the irrational zealot, one who disturbs domestic peace with threats of damnation. That “people could be swayed by such irrationality” also offended Tom. For him, prohibiting coercion and disdaining faith were compatible postures. So why not simply “look away,” as so many traditionalists urge. This injunction, more than any other, raised the hackles of my secular informants. As one lawyer in a crèche case told me: That isn’t realistic. People can’t do that. . . . I think it’s not a matter of averting your eyes. I don’t think anyone would have had a problem had the crèche been relocated across the street onto the church property where you would have seen it from all the same places, it would have been just as visible, you would have had to go to just as much trouble to avert your eyes. But I don’t think any of the people who were bothered by it would have continued to be bothered by it. What they were bothered by, was the message that was being conveyed that this was a Christian community!

Once seen, it could not be unseen. This is the nature of true profanity. “Why would I on public land have to avert my eyes to avoid something that shouldn’t be there?” wondered another New Englander involved in a crèche case. If there was a vulgar statue of a naked woman sitting in a public park, he asked, should I be expected to simply look away? Could I look away? Another plaintiff made a more philosophically nuanced case. “Well, you know,” he said, “the act of averting your eyes may [itself ] be an injury.” Image wars invite rhetorical excess. No one in their right mind thinks the ACLU is anything like the Gestapo or the Taliban, yet such comparisons are commonplace. Critics of Christian displays were not immune to this temptation. According to one man I spoke to, telling people to look away from crosses and nativity scenes is “kind of like saying, ‘We’re not going to allow Ruby Bridges into the classroom, and if it bothers you, just don’t look!’” (Bridges was the first black child to attend an all-­white elementary school in the South and the recipient of many death threats.) Another plaintiff asked, “So if on the

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front lawn someone is being beaten should I avert my eyes? To me it’s all the same. For whatever reason, I can’t separate those things.” While these claims are extravagant, they are hardly irrelevant. As I discussed in the last chapter, coercion is the single most contested concept in Establishment Clause jurisprudence. At the street level, too, coercion is the crux. As one of the former politicians quoted above averred, “You could go by, and you could look at it or not. Nobody forced you to do anything.” Had people been made to “kneel before the crèche,” then they would have had a legitimate grievance. But seeing is not kneeling. Icons cannot compel belief. But a crèche is one thing; a cross something else entirely. In my interviews, the Ku Klux Klan came up more than once. One anti-­cross advocate told me of his distress at seeing small white crosses appear in a neighborhood with old Klan associations. Unlike bumper stickers and banners, these front yard symbols sent an eerie, wordless message of Christian solidarity. To religious insiders, it may have felt like a loving embrace. To outsiders, it felt like a hostile stare. As a lawyer in another cross case told me, “I began to perceive more and more that we were sending a message—it wasn’t this passive symbol—but was actually sending a message to people that was causing them harm. It was causing them hurt. It was causing them to feel like second-­class citizens, to feel like they weren’t part of the real political process.” For his public disapproval of this message, he added, his life had been threatened numerous times. Through landscape, people perform belonging. Symbols like the cross have the power to “interpellate” a viewing subject, as Louis Althusser would have it, announcing that she is “in place” or “out of place.”36 Public space thus becomes a living metonym of the civil sphere. Iconic landscapes of national memory provide the most obvious example: the National Mall in Washington, DC; Gettysburg; Ground Zero. But between this ossified extreme and the purely vernacular lies a vast, contested territory. The most contested portion of this terrain, and the portion where the cultural structures of territorial iconicity are most alive, lies in the domain of religious politics. Yet it is also in this domain that our public, legally derived language of visual interpretation is most impoverished. Complex feelings of attachment and aversion are reduced to the binary logic of reverence and offence, embodied perception reduced to symbolic interpretation. The punctum of religious icons in pluralistic, secular societies is mediated by a huge variety of religious and aesthetic discourses. Yet in public deliberation over the place of these icons, such discourses are subsumed by what we might



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think of as the “affective regime” of legal secularity, which assigns only a handful of caricatured subject positions: the idolatrous zealot, the hypersensitive observer, the even-­keeled egalitarian. Secularity’s “game of signs,” as Asad calls it, is also a game of scripted emotions.37 This game does not do justice to the complicated feelings on either side of these conflicts. In one small city I visited, an attempt to remove a hilltop cross by a national secularist organization turned the once-­neglected symbol into a proud icon of local identity. I met with the leader of the effort to save the cross (call her Miranda), and she told me: What [the lawsuit] brought to the surface was the fact that people take for granted what they have, and the minute it’s threatened they come out of the woodwork saying, “Oh my Gosh! You cannot . . . [trails off into appalled silence]”—I mean, we had letters, so many letters saying, “I hadn’t realized how important it was to me until I thought about it being gone.” . . . And it almost in the end was a really positive thing for this town. . . . So we were able to kind of capture the feeling of people wanting to contribute and be part of it, which is huge. I mean, is still have people stopping me all the time saying, “I gave ten dollars. That’s my cross!” You know they feel like they . . . saved it. And they did. N: And do they feel in a sense now— Miranda: It’s theirs. It’s theirs. And that is fabulous. Because before they didn’t really know whose it was. I mean . . . it was the city’s, but who knows? And now the fact that they played a part—whether it was writing a letter to the editor or making a phone call to me or sending a check for 10 bucks or sending a check for 20 thousand dollars—they’re like, “I did something that is mine now, and I value it.” . . . It’s more communal, more communal.

In this exurban town, hardly a hotbed of conservative Christianity, such sources of social solidarity were hard to come by. Indeed, most residents went out of their way to downplay the religious dimensions of the controversy, focusing instead on local history and California’s mission heritage. “The intent of the lawsuit was about the religious symbol part,” Miranda told me: I mean, that was the basis for the whole thing from the beginning. But what was clear as the whole thing kind of grew was that . . . it’s more than that to us.

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It’s not like the cross on top of my church. It’s something more than that. . . . It was a symbol of, number one, the history of our town, and number two, the whole idea of religion being okay, you know, even if it’s not theirs. And I talked to the rabbi at the temple a lot, because they were being so supportive . . . and she said, “Well, you’d do the same for me if it was the star of David, right?” And I said, “Yeah. I would.” So the whole idea of freedom to have something important to you not taken away was a biggie.

Proselytizing and conversion were the last things on Miranda’s mind. But her cross meant much more than “local history.” It meant “the whole idea of religion being okay,” a phrase that carries a great deal of cultural baggage. By pointing to her alliance with the local rabbi, Miranda invoked a normative tradition of liberal pluralism and interfaith collaboration. At the same time, she implied that the attack on the cross was an attack on religion tout court, not an attack on state-­sponsored Christianity. In most of the United States, even amid the recently dramatic rise of so-­called religious nones, not being “okay with religion” is simply not okay.38 For this reason, her gesture toward cooperation and solidarity had an unmistakable edge. By rallying for the cross, her community had rallied against an antireligious, anticivil other. CONCLUSION: THE PAIN OF PLURALISM

Pluralism can hurt. More than affirmations of mutual respect, it demands entirely new modes of perception, new ways of seeing and feeling reality. To see what was once a sign of happiness, unity, and hope—a nativity scene on the front lawn of your child’s elementary school, say—as a sign of bigotry, divisiveness, and oppression; to feel what a Jewish or Hindu child might feel as she trudges past that scene on a cold December day; to fully imagine the fear and outrage of that child’s parents as they prepare to fight their Christian neighbors in court: none of this is easy.39 For the kind of people Martin Marty calls religious “belongers,” those who feel fully “at home” in their community and their country, this kind of perceptual reorientation requires adopting the viewpoint of the stranger.40 Perceiving places in this way can be particularly difficult because place belongs to such an ordinary, unquestioned dimension of human experience. According to Clifford Geertz, this is why, “Like Love or Imagination, Place makes a poor abstraction.” It simply “goes without saying.”41 Yet as Pfeffer recognized decades ago, sacred places cannot “go without saying” for



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long in a multireligious, secularizing society. Strangeness is insistent. Once unquestioned places are questioned, they cannot be easily un-­questioned. This is one way secularization has left its mark on public space. Once the province of a de facto Protestant establishment, it has become an unstable zone of pluralistic engagement. For a long time, left-­wing religious observers took a largely positive view of this process. For most of the eighteenth and nineteenth centuries, it was thought, pluralism in America really meant the mutually assured existence of mainstream Protestant denominations. After struggling mightily with Catholics and indigenous Others (Mormons, millenarian sects, and so forth), the early twentieth-­century Protestant establishment was forced to expand what Weber called “the community circle” of civil society.42 The 1940s and ’50s witnessed the ascendance of a tripartite though highly restrictive pluralism, immortalized in the title of Will Herberg’s Protestant-­Catholic- Jew and institutionalized in the cultus of “Judeo-­ Christian” civil religion. Historian of religions Richard Hecht calls this the era of “passive pluralism,” when “the three mainline religions of the United States sought to claim only the acknowledgment of their place in the religious mixture of citizenship and social life.”43 Under these conditions, Protestants, Catholics, and Jews sought public solidarity as the “religions of democracy,” as Herberg tellingly called them.44 During the heyday of passive pluralism, “civility” was the price of entry into a civil society still saturated with protestant mores. Jews and Catholics were forced to conceal their “religio-­ethnic identities” and learn to “behave themselves” before appearing in “modern, civil public places,” as the sociologist John Murray Cuddihy acidly wrote. From the Protestant majority’s perspective, Cuddihy argued, religious identities could not appear “pushy, elbowing themselves into contexts where they do not belong.” The result of this disciplinary process was what he called “differentiation trauma,” the privatization of ethnoreligious habitus, a socially enforced concealment not only of belief, but also of bodies, hidden behind the performance of “good taste.”45 This “Protestant esthetic” constructed itself on values of restraint, humility, and simplicity: “Niceness” is as good a name as any for the informally yet pervasively institutionalized civility expected—indeed required—of members (and of aspirant members) of that societal community called the civic culture. Intensity, fanaticism, inwardness—too much of anything, in fact—is unseemly and bids fair to destroy the fragile solidarity of the surface we call civility.46

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Since the new wave of immigration from the Global South and non-­European North began in the 1960s, however, the United States has witnessed the uneven but widespread growth of “active pluralism,” which Hecht describes as a new “style” of civil religion. After the Immigration Act of 1965, he argues, religious groups (including Protestants) began to make more assertive claims on public space, characterized by a multiplication of time- and place-­making performances: new religious holidays, new monuments, new styles of dress, new media outlets.47 Whereas passive pluralism is defined by consensus and (Protestant) civility, active pluralism impresses particularistic religious meanings onto public space and time. Thus, fifty years ago, Judge Gallagher could simply state that the Ossining Crèche Committee consisted of Protestants, Catholics, and Jews as evidence of its civil, “nonsectarian” nature. Today, by contrast, courts must contend with an outspoken, ad hoc coalition of Hindus, Jains, Jews, atheists, Muslims, mainline Protestants, liberal Catholics, Wiccans, and New Age bricoleurs, united only by a fear of the Christian Right and a commitment to some form of legal secularism. At the same time, they must deal with conservative Christian activists who have mastered the legal strategies of civil libertarians, and who aim to infuse the pluralist aesthetic with the spirit of seventeenth-­century toleration—that is, Protestants, Catholics, and (some) Jews permitting other religions to exist so long as they publicly conform to evangelical sociocultural norms.48 Many scholars now take a darker view of this passage from Protestant hegemony to kaleidoscopic diversification. Some wonder whether the pluralist ideal has imposed a new kind of “niceness,” one, ironically, in which censuring religious speech of any kind is seen as an attack on religious freedom. In this “postpluralist” era, argues Winnifred Fallers Sullivan, religion has become so thoroughly naturalized as a cultural universal that making legal distinctions between public and private expressions of faith is seen as pointless and perhaps impossible. Everyone is religious, all the time, in his or her own way. Hence, Sullivan writes, “Disestablishment is coming to mean less privatized pluralism through the separation of religion from public life and more a permeable and inclusive public accommodation of religion, religion in general.” Liberal secularism has lost ground as “personal spirituality” becomes an uncontested norm, even among atheists. “Religious life is so entirely disaggregated and religious authority so thoroughly shifted to the individual that both establishment and



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disestablishment are functionally impossible,” Sullivan concludes. As a result, courts are increasingly loathe to forbid any form of religious expression, no matter how discriminatory.49 Whether America has entered a postpluralist era, I cannot say. What I can say is that in the cases I studied, some form of pluralism was universally espoused, but almost always in response to an accusation of intolerance. I certainly saw little evidence that litigation (or its threat) had led to dialogue, mutual respect, or shared understanding. Quite the opposite, it seemed to aggravate distrust and intensify fragmentation along religious lines. In some places (Mount Soledad, for instance) secular activism seems to have fueled a furious Christian backlash, which in turn has galvanized the increasingly marginalized separationists. The cross is now both more sacred and more profane than ever before. But perhaps this is what pluralism actually looks like on the ground: messy, defensive, antagonistic, painful. This is another way in which secularization has shaped the cultural landscape. Six decades after Pfeffer launched his campaign against “Public School Religion,” the meaning of public space has fundamentally changed. Thanks to the ever-­present threat of litigation, the pressures of pluralism are felt every time we face a public expression of faith. Even where it does not make a visible mark, it conditions our iconic consciousness, shaping our experience of the symbolic landscape. It has become both a way of seeing and a way of feeling, a visual and emotional grammar. For many of the secularists I interviewed, this way of seeing produced deeply aversive affects: outrage, fear, disdain, disgust. Christian symbols, especially crosses, made them viscerally aware of their subordinate, “unsaved” status. This awareness tapped into some of the darkest parts of the American religious imagination. It was an encounter with profanity. When we talk about sacred places, we tend to forget that this encounter with the profane can be equally powerful. There is nothing primal or universal about it. It is the product of a specific history of interaction and conflict between religious groups. It is the punctum of religious pluralization. Placed at the site of a tragedy such as a fatal car accident, the cross fills a personal void, substituting presence for absence.50 But placed on a mountain top (or on a flag), the cross can cast an imperial light. This light is not “interpreted” in the usual sense of that word. It is simply felt, like the heat radiating from a fire. As I explain in the following chapter, courts have struggled mightily over making this iconic experience legally cognizable, mostly without success. The

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landscape of secular law is a landscape of displaceable signs, of spirit and matter divorced. We may care deeply about sacred places, but they have no bearing on our innermost religious being. They belong to the realm of outward ceremony, not inward belief. For landscape, in the end, is just scenery. You can always look away. Unless you simply can’t.

3 Performing the Constitutional Landscape

It is impossible to live in peace with those one believes to be damned. To love them would be to hate God who punishes them. It is absolutely necessary either to reclaim them or torment them. —jean-jacques

rousseau

Over the past two decades, conservative Christians have led a popular movement to display the Ten Commandments in public places, especially at seats of local government.1 They have often defended such displays as a form of national commemoration, arguing that the monuments represent a cornerstone of America’s religious and legal heritage. Both the secular and religious Left have pushed to remove these displays, including some that have been in place for decades.2 They contend that the monuments make religious minorities and nonbelievers feel like second-­class citizens, and thus violate the Establishment Clause. One side claims the monuments passively acknowledge the role of Mosaic law in American society, the other that they actively exclude non-­Christians from that society. Although many legal experts dismiss such fights as inane and divisive, Decalogue displays have become a cause célèbre on both sides of the 53

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church-­state divide.3 They have also entered the popular consciousness of church-­state law. Following a highly publicized stand-­off over a two-­and-­a-­half-­ ton granite monument installed in the rotunda of the Alabama state courthouse, the Pew Forum on Religion and Public Life conducted a national survey that indicated that the vast majority of Americans, including 82 percent of white Protestants and 89 percent of those who described themselves as “evangelical” or “born-­again” Christians, believe such displays are acceptable.4 Both sides of this fight assume the monuments are a form of political speech, that they say something important about tolerance, national identity, and the rule of law. Both also tend to assume that such speech must be understood in emotional terms. Whether hurt or heightened, feelings suffuse the debate. From the therapeutic discourse of psychic injury to the multicultural rhetoric of group expression, a set of strong cultural currents have converged on the concept of landscape. One effect of this convergence has been a striking legalization of sacred iconography, a proliferation of legal meaning around putatively religious phenomena. Five decades ago, when Pfeffer sued the Ossining school board for stigmatizing his clients, his claims were dismissed as nonsense. Today such claims are routine. What accounts for this change? What has made sacred iconography and secular iconoclasm such common features of Americans’ legal consciousness? How did such claims come to make sense? And what kind of sense do they make? In this chapter, I turn from the lives of individual activists to the institutions of law. I argue that by bringing civic landscapes within the constitutional purview of “religious expression,” courts provide a public stage for rival factions of American civil society to build solidarity within, and occasionally across, their ranks. These factions aim to purify the sacred centers of the nation-­state by staging a crisis of spatial interpretation, to align the symbolic landscape with an ideal image of civil order, to scour the nation’s schools, courthouses, capitols, and commons with the cleansing power of the First Amendment. Taking a recent Supreme Court case, Van Orden v. Perry (2005), as my primary example, I try to show how each side casts the other as endangering a sanctified center.5 In so doing, each seeks to mobilize support against a supposed sacrilege: either the “whitewashing” of America’s “Judeo-­Christian heritage,” or the “saturation” of “secular space” with sectarian idols. As the scare-­quotes indicate, I do not believe either to be widespread offenses. Nevertheless, they have become powerful tools in the hands of church-­state activists. Indeed, with each new round of litigation, they have assumed the uncanny aura of self-­fulfilling prophecy.



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Drawing on Jeffrey Alexander’s theory of cultural pragmatics, I treat this conflict as a distinctive mode of social performance.6 As a performative medium, law naturalizes ties between place and identity not only by policing expression, but also by providing a moral and political footing from which to read the cultural landscape.7 In conflicts over religious iconography, law does this in part by supplying a binary code of civil and uncivil emotions, of reverence and offense, awe and antagonism. At issue is thus not only the legally recognized meanings of religious symbols, but also the cultural status of the “civil observer,” his or her competence to appear in public and participate in civil life. Law, I argue, shows people how they should feel when they cast their gaze on a particular place and, perhaps more important, whether (and how) they should act on such feelings. Courts do not achieve this affective conditioning by fiat. Instead, they provide a stage, an audience, and a set of specialized scripts. Within these performative constraints, actors compete to pro­ject their way of seeing the material world, to translate legal discourse into durable geographic reality.8 Sometimes such translations serve to tame the messiness, passion, and heterogeneity of everyday life, to confine reality within a coldly objective system of legal calculation. Sometimes they serve the opposite purpose. Law can also be used to enchant the material world, to imbue mundane “things” with sacred and profane powers. It can turn a voiceless slab of stone into something that “endorses,” “acknowledges,” “insults,” or “excludes.” To align these things with an ideal of civil order, therefore, is not simply to use place as a screen for projecting legal meaning, but also to animate place with a transcendental essence, to make place itself into a legal actor through what W. J. T. Mitchell calls an act of “ventriloquism.”9 When done correctly, such performances achieve complete verisimilitude. By redistributing agency among even the most ordinary of objects, landscape makes place speak. Yet in the Decalogue debate, the nature of this speech—and thus the nature of place—is fiercely contested. One theory is representational: it takes the civic landscape to reflect passively the values and beliefs of the dominant religious group. The other is performative: it takes the landscape to produce a set of illocutionary effects—in this case, the exclusion and denigration of non-­ Christians. Where one group sees heritage, the other sees something like hate speech. Which theory prevails, I argue, depends on each group’s skill at dramatizing the act of observation and thus moving its audience to cathect with an iconic image of public space.10 In America, I argue, these images are drawn not only from the country’s religious history, but also from its struggles over civil

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rights for women, immigrants, and people of color. Hence, Decalogue displays have taken a new place alongside flying flags and burning crosses in a litigious repertoire of national place-­making scripts. CONSTRUCTING THE REASONABLE OBSERVER

In 1984 Justice Sandra Day O’Connor changed the course of church-­state jurisprudence when she offered a new test for determining the constitutionality of religious speech. Offered in the context of the Court’s first nativity scene case, Lynch v. Donnelly (1984), her so-­called endorsement test effectively placed the burden of legal judgment on a fictive subject, the “reasonable observer.”11 By divining this ideal observer’s perception of the government-­sponsored symbol or act in question, courts could determine if the state had overstepped the bounds of religious liberty. According to O’Connor’s initial formulation, “The establishment clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community”; hence, if a reasonable observer could be expected to interpret government action as commenting in any way on his or her political standing, then that display would be unconstitutional.12 “Endorsement,” O’Connor reasoned, “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” The constitutional scholars Christopher Eisgruber and Lawrence Sager refer to this “message” as the “social meaning” of religious symbols—the meaning that a “competent participant” in a given society would attribute to an expression or event. In America, they argue, competent participants understand that official endorsements of religion “valorize some religious beliefs and those who hold them, and thereby disparage those who do not share those beliefs.”13 Critics of the endorsement test have long maintained that it simply allows judges to pass off their personal whims and prejudices as the objective reasoning of an ideal arbiter. According to the eminent conservative jurist Michael McConnell: There is no generally-­accepted conception of what “endorsement” is, and there cannot be. Whether a particular governmental action appears to endorse or disapprove religion depends on the presuppositions of the observer, and



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there is no “neutral” position, outside the culture, from which to make this assessment. The bare concept of “endorsement” therefore provides no guidance to legislatures or lower courts about what is an establishment of religion. It is nothing more than an application to the Religion Clauses of the principle: “I know it when I see it.”14

Others have objected that since symbols can have no fixed meanings beyond those constructed by the individual observer, the test takes law into murky psychological territory that the Constitution does not govern. For many, courts simply should not be in the business of redressing expressive harm in the first place. Absent any “meaningful threat” to religious freedom, writes the legal scholar Jesse Choper, “distressed sensibilities should not rise to the level of a judicially cognizable harm.”15 Religious speech only rises to the level of “meaningful threat,” Choper and others suggest, when it forces people to violate their religious beliefs or espouse someone else’s. “The Religion Clauses,” McConnell thus writes, “were not directed against the evil of perceived messages, but of government power.”16 Despite this resistance, advocates of the endorsement test have insisted that it protects citizens from stigmatic injury or “expressive harm,” although their reasons for opposing such harm have varied. “Communication of ‘outsider’ status to other citizens not only denigrates them as moral persons,” writes one supporter; “It also discourages them from participating in civic life, including exercising such basic responsibilities as voting and serving on juries. Indeed, it encourages political outsiders to distrust and resist holders of civic power, whether they are cops patrolling a minority community or Presidents rallying support for a foreign mission.”17 Others, meanwhile, have suggested that endorsement denies religious minorities and nonbelievers the recognition they deserve as full members of a pluralistic democracy.18 In both instances, however, the root problem is a blindness to the experience of nonbelievers and religious minorities in a country dominated by Protestants. In a commentary on Lynch (which was decided in favor of the government), famed constitutional lawyer Laurence Tribe put it thus: One cannot avoid hearing in Lynch a faint echo of the Court that found nothing invidious in the Jim Crow policy of “separate but equal.” There, it was the enforced separateness of the races that was said to be a problem only

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in the eyes of the victim; here, it is the enforced “togetherness” of religion that is so dismissed. Thus, the Court dispensed at a stroke with what should have been its paramount concern: from whose perspective do we answer the question whether an official crèche effectively tells minority religious groups and non-­believers that they are heretics, or at least not similarly worthy of public endorsement? The Lynch Court allowed society’s insiders to characterize the message the outsiders receive. When the government dons religious robes, those vestments are least visible to those who wear the same colors. . . . At issue in Lynch, if the case is fully appreciated, was whether ours is to be a society in which the perspective on civil rights and human dignity is to be from the top down, from majority to minority, from insiders to outsiders—or the other way around.19

I quote Tribe at such length because he so clearly captures the political spirit of the endorsement defense. But even more important, he captures the sense in which the religious display cases embody a dramatic conflict between insiders and outsiders. No mere Christmas decoration, the crèche places a “badge of inferiority” on those who do not believe.20 When considered as a cultural script rather than a legal doctrine, the endorsement test can be seen to perform three dramatic functions. First, it individualizes the abstract political harm of religious establishment in an injured or disparaged subject. Second, it locates that harm in the act of observation. Third, it distinguishes between reasonable and unreasonable responses to religious speech. All three moves invite performative efforts (i.e., litigation) to define the cultural status of the competent, reasonable citizen. What is more, they cast the judge in the role of cultural geographer. Confronted with a nativity scene on the city hall steps, sitting in the stands of a high school football game during a moment of prayer, or standing before a judge with a copy of the Ten Commandments on his courtroom wall, what is the reasonable observer to think and feel? What kind of power, if any, does the landscape possess? Such questions force us to think carefully about the relationship between law and the production of geographical knowledge. On the one hand, participants in the litigation process all seek what Nicholas Blomley calls “legal closure,” to use the seemingly autonomous, internally consistent discourse of legal reasoning to legitimate a particular set of sociospatial relations.21 Both aim to define the “normal” civic landscape by appealing to the putatively impartial authority of legal principle. On the other hand, litigation enables a radical re-­



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signification of dominant cultural practices. What was once a “normal” landscape—the crèche on the village green at Christmas time, the hilltop cross overlooking the city—is enmeshed in a new and highly unstable web of legal meaning. It is grafted into a powerful imaginary of constitutional and unconstitutional scenes—the flag-­burning demonstration, the segregated swimming pool. What ensues, therefore, is not merely the contestation of power, but also the confrontation of complex moral geographies.22 In a seminal essay on the narrativity of law, the legal theorist Robert Cover argued that law consists of “myths” that provide a “lexicon of normative action.” These myths, however, are “radically uncontrolled.” “They are subject to no formal hierarchical ordering, no centralized, authoritative provenance, no necessary pattern of acquiescence.” Law, like scripture, can justify almost any enterprise. Hence, what Americans call “religious freedom” can be taken to name a vast assortment of narratives and images, the meanings of which vary enormously from place to place, group to group, time to time. Indeed, as Cover himself suggested in his discussion of Amish and Mennonite understandings of the Constitution, normative conceptions of place play a crucial role in imagining the rule of law. For these groups, he wrote, to practice their religion freely is to occupy a piece of sacred ground, a home carved out from the secular space of the nation-­state. It is a right with a geographical referent.23 To anyone barely familiar with constitutional history, O’Connor’s test (and her ultimate decision to allow the crèche) would have called to mind, consciously or unconsciously, the Court’s notorious decision in Plessy v. Ferguson (1896), when a Supreme Court majority claimed that a law requiring blacks and whites to ride in separate railway cars did not stamp “the colored race with a badge of inferiority.” Within legal discourse, what David Delaney calls the “geopolitics of race” is thus intimately related to the geopolitics of religion. In both cases, moreover, what we might characterize as “spatial” or “geopolitical” praxis entails a performative interpretation of the cultural landscape. By delimiting an archetypal scene of observation, O’Connor’s test allows skillful legal performers (like Tribe and O’Connor) to pro­ject an idealized image of national space, an image that law can then instantiate, often violently, in the material landscape. In 2004 Justice O’Connor provided an important gloss on the endorsement test in an opinion supporting the court’s decision to uphold the phrase “one nation under God” in the Pledge of Allegiance (Elk Grove Unified School District v. Newdow 2004). Courts, she wrote, must keep two principles in mind when applying the test: first, that a “purely subjective” approach could never

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work “given the dizzying religious heterogeneity of our Nation”; and second, “because the ‘reasonable observer’ must embody a community ideal of social judgment, as well as rational judgment, the test does not evaluate a practice in isolation from its origins and context. Instead, the reasonable observer must be deemed aware of the history of the conduct in question, and must understand its place in our Nation’s cultural landscape.”24 The first principle answered longstanding complaints that courts should not allow individual “hecklers” to stifle speech or tear down symbols that would not normally offend a reasonable observer. Implicitly, this principle rests on the notion that most Americans, regardless of their religion, intuitively know what kinds of religious expression are and are not appropriate in public places, and therefore that they agree on the essential nature of those places. But as the second principle suggests, a “community ideal of social judgment” and “rational judgment” are two different things, although they may overlap. The former has more to do with the “origins” and “context” of a practice, terms O’Connor uses to suggest “history” and “geography,” respectively. Her reference to America’s “cultural landscape” is not metaphorical. Hence, what are known as her “history” and “ubiquity” requirements for constitutionally permissible religious speech are also requirements for geographical knowledge. A creature of both universal reason and particularistic “social judgment,” her reasonable observer is both immune to iconoclastic passion and thoroughly versed in the iconography of American civil religion. Without specialized legal knowledge, he or she can sniff out speech that “has as its purpose placing the speaker or listener in a penitent state of mind, or that is intended to create a spiritual communion or invoke divine aid”—speech, in other words, that “strays from the legitimate secular purposes of solemnizing an event and recognizing a shared religious history.”25 O’Connor’s test encapsulates a crisis in geographic interpretation. It opens the door to resignifying “the reasonable” while reinforcing a conception of “legitimate secular purposes” that strongly favors a de facto Protestant establishment. In some cases, therefore, it reproduces precisely the sort of insider/ outsider distinctions it is meant to remedy. THE TEN COMMANDMENTS CASES

The Supreme Court first addressed government-­sponsored displays of the Decalogue in 1980 when it struck down a Kentucky statute that required pub-



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lic schools to display a copy in every classroom.26 Anticipating a constitutional challenge, the state required the displays to be purchased with private money and bear a fine-­print notation at the bottom stating, “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” But the Court found the statute had no real secular purpose for displaying what was “undeniably a sacred text.” However, in a dissent that anticipated much of the debate to come, Justice Rehnquist contended that the Ten Commandments had indeed played a leading role in the development of American law. The Kentucky legislature, he wrote, had merely wanted to teach students about the “secular impact” of the Commandments on American history and government.27 The Stone court did not explicitly address issues of context or location, but they clearly factored into its decision. Whereas Rehnquist characterized the displays as reminders of the country’s religious heritage—theoretically equivalent to a lesson on Gothic cathedrals or Buddhist statuary—the majority characterized them as a proselytic intrusion into the secular space of the public school classroom. What mattered for the latter, of course, was that the Commandments were on the wall, not in a textbook or a slide projector. By occupying this permanent location in the classroom, they were integrated into the moral architecture of a “neutral,” unmarked public place. Twenty-­five years passed before the Court revisited Commandments displays, this time riding a wave of lower court litigation and amid a movement to display the Decalogue in public places. This movement had already reached a climax of sorts in 2003 with the highly publicized conflict over “Roy’s Rock” in Montgomery. By the time the Court agreed to hear Van Orden and a companion case, McCreary County v. American Civil Liberties Union of Kentucky, in 2004, a new cultural script for displaying the Commandments had been firmly established in the public imagination. McCreary resembled the Moore case in several important respects. In the summer of 1999 the governments of two Kentucky counties, Pulaski and McCreary, placed large, gold-­framed copies of the King James Version of the Ten Commandments in their courthouses. In Pulaski County the county judge-­executive hung the Commandments in a public ceremony with his pastor, calling them “good rules to live by.” In McCreary County, the legislature ordered that they be displayed in a busy area of the courthouse. The American Civil Liberties Union sued, and the counties responded by surrounding the displays with other documents containing both juridical and reli-

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gious themes, such as the “endowed by their Creator” passage from the Declaration of Independence and the national motto. Following a court’s injunction to remove the displays, the counties modified them yet again, this time to include copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the Mayflower Compact, and other “foundational” documents. An explanatory note identified the Commandments as “the moral background of the Declaration of Independence and the foundation of our legal tradition.” The counties claimed these revised displays had a secular, educational purpose. The lower courts were not persuaded. Nor was the Supreme Court. Arguing for a five-­member majority that the defendants had shown clear religious objectives, Justice David Souter framed his opinion as a defense of minority rights during a period of religious unrest. Government, he maintained, must remain neutral on religious matters for the sake of preserving civil order. “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts,” he wrote, “but the divisiveness of religion in current public life is inescapable.” In a concurring opinion, Justice O’Connor took this argument one step further, suggesting that displays such as those in Kentucky could lead to the suppression of minority beliefs. “Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices,” she wrote.28 In what can only be described as a vitriolic dissent, Justice Antonin Scalia advanced a majoritarian counterargument, claiming that the government may espouse monotheistic beliefs because the vast majority of Americans belong to either the Christian, Jewish, or Muslim faiths, all of which hold that the Ten Commandments were given by God to Moses, and are “divine prescriptions for a virtuous life.” Vehemently rejecting the idea that the Constitution bars the government from “acknowledging” a single Creator, he framed the problem as one of balancing interests: “On the one hand, the interest of [the] minority in not feeling ‘excluded’; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors.” In characterizing such supplication, Scalia equated the posting of the Commandments to opening a legislative session with a short prayer or including a crèche in a public Christmas display. What is more, he expressed intense frustration with the notion that any feelings of exclusion that such traditions might in fact matter legally:



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One cannot say the word “God,” or “the Almighty,” one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.29

According to Scalia, a clear hierarchy of religions exists in America, with the monotheistic “religions of the book” enjoying privileged status not only in cultural practice but in legal principle. Moreover, close attention to his language reveals a telling image of the good that law must protect: Americans giving God “thanks and supplication as a people, and with respect to our national endeavors.” We see, in effect, the sacred half of a Durkheimian binary—a solidaristic moral vision embodied in public “acknowledgments” of the Creator. The profane half is meanwhile embodied in the hypersensitive atheist or polytheist, those Others who feel aggrieved by the “disregard” shown to them by government. They are the uncivil and the (rightfully) unprotected. Whereas McCreary conformed in many ways to the performative model enshrined in Glassroth v. Moore, Van Orden presented an entirely different set of facts. Like dozens of near-­identical monuments in public squares around the country, the display in Van Orden was donated to the city of Austin by the Fraternal Order of Eagles, a national civic organization much like the Elks or the Knights of Columbus, as part of a “youth guidance campaign.” Funded in part by the filmmaker Cecil B. DeMille—who used the campaign to publicize his blockbuster film, The Ten Commandments (1956), starring Charlton Heston and Yul Brynner (both of whom reportedly appeared at dedication ceremonies)— the campaign was intended to provide the nation’s wayward youth with a public code of moral conduct. Responding to internal concerns about sectarianism, however, the Eagles were said to have consulted representatives of the Jewish, Catholic, and Protestant faiths to devise a version of the Commandments that incorporated elements from each theological tradition.30 The result of this Herbergian triangulation was engraved on a roughly six-­ foot-­tall and three-­and-­a-­half-­foot-­wide granite slab and erected on the Texas capitol grounds in 1961. In its center, a large panel displaying the Commandments sits below depictions of two small tablets with ancient Hebrew script flanking an eagle grasping the American flag. Just above the eagle there is an

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eye inside a pyramid, similar to the supposedly Masonic symbol displayed on the one-­dollar bill. Just below the text are two small Stars of David, as well as a symbol representing Christ: two Greek letters, chi and rho, superimposed on each other. At the bottom of the monument is a dedication to “the people and youth of Texas” by the Eagles. Displayed alongside sixteen other statues and memorials commemorating significant events and people in Texas history, the monument stood unchallenged for forty years until Thomas Van Orden, a nonpracticing lawyer, filed suit in federal district court.31 The court rejected his charge that the monument favored Christianity and Judaism over other religions, and he was defeated again on appeal. Along with McCreary, the case became a flashpoint in America’s church-­state wars, with interest groups and institutions across the political spectrum filing amicus curiae (friend of the court) briefs in an effort to sway the justices, especially the all-­important O’Connor. The state rested its case on two key propositions: that the Texas capitol grounds constitutes a kind of outdoor museum devoted to representing the “cultural heritage” of Texas; and that the monument itself amounts to a “passive acknowledgment” of Judeo-­Christian law. Its brief defending these propositions is a virtuosic display of landscape interpretation. It opens with a virtual tour of the grounds, describing in minute detail the various memorials that a visitor would encounter as she follows a path laid out by the State Preservation Board. The reader inspects several monuments before reaching the Decalogue (which, she is assured, is one of the smallest and least conspicuous displays on the grounds), and she does not linger there before passing onto the others. Thus placed in the role of the “reasonable observer,” her gaze falls on a variety of images both religious and secular, from what the state calls a “symbol of Aztec prophecy” on the floor of the Capitol rotunda—the eagle and serpent depicted on the Mexican flag—to a bronze statue of a Confederate soldier atop a massive monument to John B. Hood’s Texas Brigade. The Mexican flag plays an especially significant role, appearing first in the Texas brief and meriting a long footnote stressing that it “reflects a faith tradition found in Texas long before the arrival of the Jewish and Christian faiths.” At the end of the brief, the state compares it (and, by extension, the Eagles’ monument) to a Native American totem pole in a Seattle park and a legislative designation of “Buddha Day” in Hawaii as instances of permissible religious acknowledgment.32 Texas paints a picture of an inclusive, multicultural place, one that “gives voice” to all who have contributed to the many-­hued social fabric of Texas.



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Indeed, the word “culture” itself appears no less than 25 times in the body of the Texas brief, alongside several prominent references to “heritage,” “identity,” and “diversity.” At the same time, the brief refers to a “rich national tradition” of displaying the Commandments on government property, and it repeatedly cites O’Connor’s “cultural landscape” as a synonym for that tradition. An objective observer would simply know that “such acknowledgments have been featured prominently in our Nation’s cultural landscape,” the brief suggests.33 Here, again, “landscape” denotes that which is sacred and ubiquitous, eternal and incontestable. This rhetorical strategy works not only to neutralize accusations of sectarian bias, but also to invoke a mythic image of sanctified national space. At the same time, it allies the state with “common sense.” In its amicus brief, for instance, the Bush administration argues that, “as a matter of common practice, state capitol grounds and buildings have become forums in which the public reasonably expects to find memorials to its political and cultural heritage, both religious and secular.”34 The claim is as powerful as it is circular. What the public “reasonably expects” defines the “reasonable public.” Not surprisingly, Texas compares the grounds to the most sacred “museum-­like” setting of all—the National Mall in Washington, DC—and in so doing, puts Van Orden and his ilk beyond the pale of reasonable citizenship. After all, who could hate the National Mall? Reverence is the only civil response to such a place.35 Texas also adopts the distanced, synoptic perspective familiar to any student of landscape iconography. To its brief it appends two photographs, one an aerial view of the capitol grounds (fig. 4), the other taken from the perspective of the capitol building (fig. 5). In neither can we see the monument’s text. Quite the opposite, in both images the monument is almost completely swallowed up by its physical context. What matters is the place itself: the seat of government, the sacred center of the Texan body politic. Put once again in the place of the reasonable observer—this time high above the ground—the audience is urged to reflect on the timeless integrity of the civic landscape. To some, perhaps most, that landscape may seem generic or banal—a place to pass through on the way to work, a haunt of homeless interlopers like Mr. Van Orden, a stage for press conferences and occasional rallies. But this impression merely reinforces the case for the status quo. To remove the monument would be to commit an irrational act of iconoclasm. By classifying the capitol grounds as a kind of museum, the state uses the time-­worn strategy of masking asymmetrical power relations beneath the impartial veneer of collection and display.36 More important, however, it depicts

Figure 4. The Texas Capitol grounds, aerial view. Source: Respondent’s Brief, Van Orden v. Perry.

Figure 5. The Texas Capitol grounds, view from capitol. The red arrow points to the Ten Commandments monument. Source: Opinion of Justice Stephen Breyer, Van Orden v. Perry.



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the monument as merely one “viewpoint” or “voice” among many. The ruling metaphor here is not the museum, but the marketplace of ideas. For example, the Becket Fund for Religious Liberty (one of several conservative public interest law firms to file amicus briefs in Van Orden and McCreary), describes the Austin monument as a form of “cultural expression” on par with a litany of sacred sites and symbols that enjoy government protection, from the Pueblo Bonito ruins in Chaco Canyon, New Mexico, to the Pu’ukohola Heiau Temple in Hawaii.37 To single out one tradition would amount to an attack not only on Christians, but on the very principles supporting religious pluralism and free expression, it suggested. In the words of the Fraternal Order of Eagles (which also filed an amicus brief), “The forced removal of the monument would declare that religious expression is a second class form of speech, not entitled to public recognition or constitutional protection.”38 Neither Texas nor its supporters avoided the more traditional formulations of Christian nationalism, however. These ranged from the frighteningly theocratic to the merely misty-­eyed. For example, the Claremont Institute for the Study of Statesmanship and Political Philosophy—a nonprofit educational foundation whose stated mission is to “restore the principles of the American Founding to their rightful and preeminent authority in our national life”— characterized Decalogue displays as part of the “core state police power to foster the health, safety, welfare, and morals of the people.”39 In a joint amicus brief, several state governments less provocatively call the monument an “accurate portrayal of the very wellsprings of our history.”40 Whether or not one “subscribes to the Judeo-­Christian faith traditions,” concurred the Bush administration, “the image of the twin arched stones alone evokes instantaneous and almost universal recognition within the United States as an image of the rule of law.”41 The American Center for Law and Justice, a public interest firm founded by evangelist Pat Robertson as a conservative counterpart to the ACLU, refers to “the integral part played by the Decalogue in the legal history of Western Civilization, from the dim mists of Alfred’s time, through the era of Blackstone and the American framers.”42 Even the Eagles—a group that is hardly on the vanguard of Christian reconstructionism—claimed their original purpose was “to highlight the Ten Commandments as the foundation of law in our culture and thus could serve as a nice shorthand of rules to govern personal conduct that would lead to a productive life.”43 Putting aside scholarly arguments that the Decalogue has played almost no part in the development of American law, these claims are worth noting for

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two closely related reasons.44 First, they enact a form of social memory that is specifically legal in nature. Second, they paint the civic landscape as a kind of mirror held up to history, an objective—and thus unassailable—reflection of the nation’s constitutional heritage. That Americans revere their constitution with a kind of religious fervor is hardly news. In the contemporary evangelical movement, however, this fervor has been coupled with a popular belief that the Constitution itself was “based on” lost Christian values, and that the Decalogue in particular provided the moral underpinning of the nation’s legal system. This intensely legalistic reading of Christian heritage has been made physically manifest in numerous Decalogue displays. Yet it has been the Eagles’ monuments—once-­forgotten artifacts of Cold War civic piety and mid-­century Hollywood hucksterism—that have proven most helpful to the Christian foundationalist cause. For many Americans (even those who lived through them), the early 1960s are sufficiently removed in time to count as “History.” Hence, the monuments, regardless of their provenance, count as “evidence” of that history. Coupled with a well-­documented nostalgia for a purer, “more Christian” past, this kind of legal memorialization strongly militates against iconoclastic dissent. The history embodied in the monuments is sacrosanct. It has been grafted into an iconic image of “Main Street America.” This same “history,” traced backward to the founders, is used to argue that the endorsement test should be replaced with a “non-­coercion” standard. In a thirty-­six-­page brief, the powerful evangelical organization Focus on the Family refers to “history” no less than twenty-­eight times, usually to denote something that separationists have profoundly misinterpreted. Taking a hard-­line “originalist” approach, they claim that plaintiffs may only sue when the state has made them, “by force of law or threat of penalty,” to conform to some religious orthodoxy, not because of “mere hurt feelings.” “Now,” they write, “federal judges act as prophylactic psychologists, sweeping ‘offensive’ religious content from sight before an ‘eggshell atheist’ plaintiff sees it.”45 What is more, they ignore the prime dictate of the intellectual marketplace: that government cannot censor views and ideas that some find offensive, even when it is government itself that speaks. Of course, one might well ask what kind of “views” or “ideas” are expressed by such a monument. Does “I am the lord thy god” express an idea? Does it “express” anything? In many ways, it is simply an assertion of authority, like a policeman flashing his badge. And how are we to square the claim that a monument is “entirely passive” with the ur-­imperative inscribed ten times



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on its face? Is “Thou shalt not make to thyself any graven images” a “passive” command? The need to confront these questions is obviated by the performative conventions of law. According to Focus on the Family, “no one is ordered to walk past [the monument], pay homage to it, or participate in ceremonies around it. Neither does the display coerce or compel the passerby to conform to a certain belief system.”46 Wallbuilders, an organization devoted to publicizing America’s Christian heritage, makes another artful run at reasonableness in its amicus brief, when it writes, “The monument cannot capture an unwilling audience, and Mr. Van Orden can, of course, leave its premises at will or avoid it altogether. The delivery of the religious message is also inherently subject to the viewer’s free will. The viewer must, by deliberate affirmative act, choose to read the inscribed message in order to ascertain its content.”47 With its talk of “audiences,” “message delivery,” “free will,” and “deliberate affirmative acts,” the Wallbuilders brief evokes a powerful image of evangelical speech, of spreading the gospel from one autonomous individual to another. Like a preacher, the monument is merely a conduit of the Word; one can listen, or one can walk away. Although many nonevangelicals support Decalogue displays, evangelicals are typically their most passionate and committed advocates. In their submissions to the Court, one is vividly reminded of their distinctive theological and cultural outlook. As the sociologist Christian Smith writes, “Issues of free expression are important to evangelicals because their identity is rooted in individual expressions of faith within the public world.”48 Furthermore, evangelicalism “flourishes on difference, engagement, tension, conflict, and threat.”49 In a sense, then, the multicultural nature of the Texas capitol grounds, not to mention the outrage of Van Orden and his supporters, becomes a kind of structural requirement within the evangelical worldview. As Smith persuasively argues, modern evangelicalism is thriving because of—not in spite of—America’s growing cultural diversity. In this sense, lawsuits such as Van Orden’s help the Christian Right (a term I do not equate with evangelical) by proving the existence of the so-­called war on Christianity. After all, the monument was essentially useless when it simply sat ignored on the capitol grounds. Once attacked, it became an emblem of group identity. To many conservative Christians, this attacker appears to have “lost all respect for any belief system not [his or her] own, and assumes an attitude of deep offense by the slightest acknowledgement of any conflicting beliefs.”50 Indeed, he seeks nothing less than the “whitewashing” of American religious history.51 In the end, Texas’s strategy worked brilliantly. Chief Justice William Rehn-

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quist, joined by Justices Scalia, Kennedy, and Thomas, issued an opinion affirming the monument’s status as an “acknowledgment” of the state’s religious heritage. In solemn, reverential tones, the plurality repeatedly invokes the “nation’s heritage,” and though they pay lip service to the reasonable observer, they focus on the monument itself, which they characterize as “passive.” In a separate concurrence, Justice Thomas goes one step further by campaigning for the coercion test. According to him: In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life.52

For Thomas and the conservative wing of the court, there is really no such thing as a coercive religious symbol. As long as they enjoy the same substantive rights, citizens have no right to feel included in the political community. Indeed, absent “real” harm, courts have no business getting involved in these kinds of interpretive debates in the first place. Surprisingly, however, it was the liberal Justice Stephen Breyer, not the centrist O’Connor, who swung the case against Van Orden. In a concurring opinion, he condemns as “absolutism” the desire “to purge from the public sphere all that in any way partakes of the religious,” arguing that it not only contravenes tradition but could foment precisely the sort of sectarian strife the establishment clause was designed to prevent. A staunch pragmatist, Breyer acknowledges the monument’s religious meaning, but insists that in this specific context it does not overwhelm. “The physical setting of the monument . . . suggests little or nothing of the sacred,” he writes. It “does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals.” Moreover, it “communicates to visitors that the State sought to reflect moral principles, illustrating a relation between ethics and law that the State’s citizens, historically speaking, have endorsed.” It is, in other words, a piece of cultural heritage, a “passive” reflection of one people’s ideals.53 To support these contentions, Breyer appends a copy of the second image from the Texas brief along with a tourist map of the capitol grounds listing the names and locations of every display. Once again, the reader is asked to assume a distanced, synoptic viewpoint. Most important, though, we are asked



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to reflect on the passage of time. In forty years, Breyer stresses, no one has challenged the monument. Those forty years “suggest more strongly than can any set of formulaic [legal] tests” that most visitors have not perceived the government to be endorsing any set of religious beliefs. In contrast to the “short” and “stormy” history of the displays in McCreary, the long and largely pacific history of the Austin monument indicate that in the future, it will not “prove divisive.”54 STIGMATIC INJURY OR ENFORCED REVERENCE?

But Texas did not convince all the justices. In an impassioned dissent, Justice Stevens (joined by Justice Ginsburg) constructs an entirely different persona for the reasonable observer, and thus an entirely different set of meanings for the monument. Stevens’s brief opens with a stark quotation of the Commandments themselves, accompanied by a photograph of the monument taken from close range and roughly at eye-­level with the phrase, “I am the lord thy God” (fig. 6). The monument fills the frame; it looms over the viewer with no other monument in sight. In sharp contrast to the aerial perspective presented by Texas, this image offers, in effect, a child’s-­eye view. Emphasizing the deep theological differences between the various translations of the Decalogue (a point stressed by Van Orden and several of those who submitted amicus briefs on his behalf, most notably the Anti-­Defamation League) and attacking Scalia’s majoritarian argument in McCreary, Stevens attempts to put his audience in the place of the reasonable (and reasonably offended) “nonadherent.” For him, symbolic exclusion poses a serious political danger. Whereas Breyer and others raise the specter of a public square “purged” of religious symbols, he imagines a civic landscape saturated with them. Under the theories advanced by Scalia and Thomas, he writes, a state could “adorn all of its public spaces with crucifixes or passages from the New Testament,” thus replacing Jefferson’s metaphorical wall of separation with a “perverse wall of exclusion—Christians inside, non-­ Christians out.”55 As the state’s insistence on the “museum-­like” nature of the capitol grounds suggests, Van Orden hinged on the characterization of place. In a separate dissent joined by Justice O’Connor, Souter takes great pains to refute both the museum analogy and the plurality’s invocation of the public school classroom as the one place where displaying the Commandments is expressly forbidden. His opinion reads like a catalogue of permissible and impermissible contexts for display of the Decalogue. For instance, they are allowed on the Supreme

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Figure 6. Ten Commandments monument, Texas Capitol grounds. Source: Opinion of Justice John Paul Stevens, Van Orden v. Perry.

Court’s own walls, where a frieze depicting “history’s great lawgivers” includes a figure of Moses holding the two tablets. This, Souter argues, is because the context makes clear that the court is not exhorting viewers to follow the Commandments, but simply recognizing the historic significance of Mosaic law. Likewise, he says, the government does not endorse Roman Catholicism when it hangs Giotto’s Madonna in the National Gallery. “But 17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum,” he writes, “and anyone strolling around the lawn would surely take



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each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently than fortuity and the edge of the grass.” The word “statehouse,” Souter concludes, reveals the real nature of the place: it is the “civic home” of the state’s citizens, and as such it should welcome them all.56 Whereas Texas built its case on the museum and marketplace analogies, Van Orden focused on the capitol as a seat of political power. Rather than a forum for representing cultural diversity or airing ideas and opinions, it is where the state declares the law of the land. And to nonadherents confronted with the monument, that law would appear to leave them out. In his oral argument, Van Orden’s lawyer, Erwin Chemerinsky, urged the justices to “imagine the Muslim or the Buddhist who walks into the State Supreme Court to have his or her case heard. That person will see this monument and realize it’s not his or her government.”57 There are no “hurt feelings,” no litigious indignation—merely the logical presumption that, in the plain words of one legal expert, “To display a sacred text is to endorse that text.”58 To endorse this particular text, Van Orden suggests, is to demand obedience to its divine author. In this sense, the actual content of the text is less important than its overall visibility. As the religion scholar James Watts has argued, such iconic texts are meant to be revered, not read.59 Some of Van Orden’s supporters expressed themselves more passionately. In their brief, for instance, the Freedom from Religion Foundation implies that the monument is “boorish,” “malicious,” and “disdainful” of religious minorities.60 While they do not go so far as to compare them to swastikas or burning crosses, the implication is clear: such monuments exceed the limits of civil discourse; they activate intolerance. Others sought to historicize the same phenomenon by placing the Decalogue within a legacy of xenophobic Christian nationalism. In a joint brief, Americans United for the Separation of Church and State, People for the American Way, and the National Council of Jewish Women wrote that the current fervor for displaying the Decalogue recapitulates two previous movements, one in response to the influx of European immigrants at the beginning of the twentieth century, and the other in response to the Cold War. They cite a campaign by a Christian nativist organization, the International Reform Board, to post the Ten Commandments in schools, courts, factories, and churches in the period following World War I as part of a domestic “missionizing” campaign. The second wave of Commandments displays in the 1950s, they argue, was part of a broader response to “godless communism.” To drive their point home, Americans United recites a litany of plain-

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tiffs in Establishment Clause cases who have been harassed, ostracized, and physically attacked for challenging the symbols and practices of the religious majority. While they do not explicitly accuse Texas of inciting these acts of hate, the implied association is clear.61 Though an individual plaintiff, Van Orden spoke implicitly on behalf of a broad community. On the one hand were those groups whose religion accords little or no significance to the Decalogue: the Muslims, Hindus, Buddhists, and others who have only recently begun to settle Texas in significant numbers. From their perspective, states a brief by the Hindu American Foundation (with a coalition of Buddhists and Jains), the primary effect of the monument is to “put the weight of the state behind an image underscoring [their] otherness.” Not that this otherness was invisible elsewhere. After all, the group writes, “An adherent of a non-­Judeo-­Christian faith in Texas for any length of time cannot help but be aware of his or her status as a religious minority. Texas is part of the ‘Bible Belt.’” Hence, “For the state of Texas to place on its Capitol grounds one of the central symbols of the religious majority . . . is in itself powerfully suggestive of official endorsement.” In this context, writes Americans United for the Separation of Church and State, keeping an old display is worse than putting up a new one, because it suggests that the Decalogue is “ingrained in the fabric of the community.”62 Another constituency was composed of Christians and Jews who believe that when government displays their sacred texts and symbols, it sullies them with politics. This group argued that by displaying the Decalogue—which, again, exists in many versions—the state inevitably drives a wedge between different sects by preferring one version over the others. The first claim is central to a fading tradition in separationist thought, which holds, as Roger Williams famously stated, that the “garden” of religion must be walled against the “wilderness” of the world. In his classic essay on this tradition, the historian Mark De Wolfe Howe argued that Americans adopted the First Amendment not to keep religion out of politics, but to safeguard the realm of the spirit from “the rough and corrupting hand of government.”63 Especially offensive to those who still adhere to this principle was the claim, put forth by Texas, that the Decalogue has both sacred and secular meanings, thus compromising the religious significance of the text. Interestingly, this argument rang true for Scalia and Thomas, the most conservative members of the Court. According to them, however, the state should be allowed to send unequivocally religious messages, even if it claims in court to be doing otherwise. As for the second objection,



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that displaying one version implicitly denigrates the others, it apparently did not ring true for more than four members of the Court. Perhaps they, like the Buddhists, Hindus, and Jains cited above, simply knew that the body politic of Texas does not speak in a Catholic or Jewish voice. What appears to have ultimately drawn these constituencies together was not a shared sense of stigmatic injury, however, but a belief that the state must not be allowed to exploit the ritual trappings of Christianity. In other words, their feelings were not at stake; it was the feelings of those awestruck, reverential, and penitent observers who, upon viewing the monument, might identify with an image of America as a “Christian nation.” What offended them was not the monument itself, but its use as a political tool. What bothered them was not feeling excluded, but being included—being invited to join the fold, to accept religious truth and become an insider in the Christian body politic. This is why Van Orden’s lawyer, rather than paint his client as a victim, emphasized O’Connor’s prohibition against speech that places its audience “in a penitent state of mind.” In the end, that is where the real injury lay: in being asked to revere a Christian icon in the name of national solidarity. CONCLUSION: LAW AND CIVIL REPAIR

Critical legal studies have revealed much about law as a means of ideological legitimation, but they may have obscured some of law’s more democratic aspirations along the way. By “democratic,” I obviously do not mean “reasonable” or “dispassionate.” On the contrary, I mean a set of culturally embedded ideals and practices, many of which look thoroughly unreasonable by the standards of much democratic theory. In a court of law, however, these practices and ideals sometimes allow the disenfranchised and oppressed to claim a voice denied in other spheres. If their performance is fused, they can literally remake places by redirecting the material force of law. Barriers to civil inclusion may be removed, symbols of oppression torn down. To succeed, however, they must pollute the motives of their opponents and purify their own. Their opponents must never be reasonable. Indeed, as legal theorist Paul Kahn argues, in America the claim of reason is so central to the practice of law that almost all legal debates boil down to the same cultural formula: “my reason against your desire.” “Politics,” Kahn writes, “is conceived as a struggle between good and evil, represented by reason and desire. . . . What is reasonable is universal and, therefore, good for all. Desire, on the other hand, is

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particular and private.”64 Yet this empirical fact says nothing about law’s political value. That reason and desire—and, by extension, individual autonomy— are discursively constructed does not make them any less important for legal actors to claim. In my analysis of the Decalogue debate, I have tried to show how antagonists in church-­state conflict must depict the Other as intolerant and unreasonable, as governed by special interests and uncivil, particularistic desires. I have also tried to show how landscape serves this end by dramatizing conceptions of sacred, profane, and even mundane place. By “place,” however, I do not mean some static cultural blueprint passed down through the ages, but a processual gathering of people and things, bound by resilient moral and emotional ties that are continually remade through rituals of attachment and detachment, inclusion and exclusion, remembering and forgetting. As I insisted in the last chapter, place bears a mutually constitutive relation to the self, and landscape can be understood as a dramatization of this relationship. As a form of performance, landscape (to parrot Aristotle) imitates the act of viewing.65 This act is not always an act of possession or conquest. Landscapes can also dominate us. This is why I have insisted on paying close attention to the ways in which legal discourse redistributes or displaces agency, to the way it gives voice to things and places. In Van Orden, there was no question that the monument spoke on behalf of one group or another, that it acted as an agent of the “Christian Right,” “Judeo-­Christians,” or “Texas.” Only its message and effects were under debate. Yet it was law that made it speak, not by channeling some numinous force, but simply by staging a crisis of interpretation. The question of meaning led inexorably to the question of agency, from what the monument symbolized to what the monument did. Fusion, then, could only be achieved by constructing a compelling, seemingly authentic viewing subject, a “citizen observer” who was shocked, hurt, inspired, terrified, overjoyed, or simply bored by the sight of a six-­foot granite slab. The nature of the act would reveal the nature of the place, whether or not it was essentially democratic. “Nature,” in this particular sense, is thus a performative achievement. It is the fusion of place and political meaning. The communications scholar and cultural historian James Carey suggests that the First Amendment does not so much enumerate a set of distinct legal rights as picture an archetypal public space, one where citizens can gather, speak, and share news without fear of religious persecution. It paints an image, he writes, of a “society in conversation.” As Carey describes it, the young repub-



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lic was a loose alliance of places, held together by a fragile network of political communication. And in the framers’ experience, public religion—­politicized religion—posed the greatest threat to this alliance and this network. They of course assumed that most people would not be allowed to participate in the country’s “public conversation.” But among those who ought to be allowed, religion was the likeliest reason for censorship. Within the states, then, public places—the nodes in the national network—had to be kept rigorously open and religiously neutral.66 To a constitutional historian Carey’s claim might seem fanciful, and to a lawyer it might seem ridiculous. But to a cultural geographer it is wonderfully provocative. Among other things, it suggests that to possess something called a right, we must have some idea about where that right is to be exercised.67 To put it in quasi-­Wittgensteinian terms, we must know where “the game of rights” is to be played, which means we must also know the rules of that game. In this sense, the First Amendment does not so much depict a specific place as formalize a set of criteria for evaluating places in general. At the same time, it casts the First Amendment as a kind of rough guide for democratic place-­making, as a utopian script for concrete action. In America, therefore, one might say that what lawyers call “First Amendment rights” are a promiscuously blended set of cultural scripts that orient Americans toward a certain view of religious speech, one that stringently—one might say “obsessively”—homologizes the nation and “the public square.” In other words, they are as much about making and maintaining particular kinds of places as protecting particular kinds of rights. When the justices in Van Orden quibbled over the relative location of different monuments or the minutiae of biblical translation, they were appealing to concrete manifestations of this utopian image, scripted versions of a civic ideal. This has struck many observers as maddeningly pedantic. Yet, as I have consistently tried to stress, such small interpretive problems can have tremendous moral and political significance. What may seem trivial to some can shake the foundations of religious freedom for others, especially those whose beliefs— like those of the “polytheists” and “nonbelievers” in Scalia’s McCreary dissent— are deemed inconsequential from the start.

4 The Spiritual Gaze

If an Indian says a rock contains the spirit of God, courts and judges must not dismiss this as a romantic description. Keep in mind, to a Catholic consecrated bread is no longer bread but the very physical body of Christ. . . . No court would challenge the Catholic belief in that regard, and no court should challenge as romantic overstatement that places or things contain the spirit of God either. —former

hopi vice chairman vernon masayesva

A middle-­aged Hopi man named Bill Preston takes the stand in a Prescott, Arizona courtroom. It is October 12, 2005, the first day of what will be an eleven-­day trial. The courtroom is packed. Protestors have been chanting in the street. Although Preston, who also goes by “Bucky,” knows English, he chooses to speak with the help of an interpreter. He is here to testify about his religion, but he cannot testify fully because his religion forbids it. Although journalists and others will later refer to him as a “spiritualist,” “spiritual leader,” or “spiritual runner,” he cannot even reveal his role in Hopi religious life. “I’m just a human, simple human being,” he says in English. 79

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Pressed by his lawyer to elaborate, he says, in Hopi, “I am hesitant to talk about my role, therefore I prefer not to talk about it.”1 Preston is in a bind. He and several other plaintiffs from different southwestern tribes are suing to prevent a ski resort from using treated sewage effluent from the city of Flagstaff to make snow on Arizona’s San Francisco Peaks, an extinct volcano sacred to at least a dozen tribes and an axis of Hopi cosmology and culture. Although the effluent will be purified with cutting-­edge technology, the plaintiffs believe it will desecrate the Peaks and endanger their way of life. Many of them observe strict prohibitions against contact with substances contaminated by death, such as blood from bodies in the Flagstaff morgue. To make their case, they must explain exactly what this defilement would mean in religious terms. But the court’s religious terms are not their own, and their own are carefully guarded. “Okay. What is the significance of the San Francisco Peaks to you,” Preston’s lawyer, Laura Berglan, continues. “Life,” is his one-­word reply. Berglan wants more. “Who are the Kachinas?” she asks. “The Kachinas are very powerful spirits that give us life,” he responds. “It’s very difficult to explain. And again, it’s not proper to be—I’m uncomfortable to talk about it in detail, but the main thing is they are very powerful spirits that give us life.” These spirits live on The Peaks, Preston explains, and they give life by bringing rain not only to the Hopi, but to the entire world. For this reason, Preston directs his prayers to the Peaks, or Nuvatukya’ovi (“Snow Lying on Top”), “every morning, every night, any time in between” (127–29). Abruptly, Berglan asks: “What is your belief with respect to intermixing the living and the dead?”

A: That question disturbs me because I don’t like to talk about the dead. We’re not supposed to—can I say it in Hopi? Q: Sure. A: (Through interpreter) The subject about talking about the living and the dead is a terrorist-­type of subject and is meant to scare people, so we don’t talk about those who have gone on because they are gone physically, but they have turned into clouds now and they come back to us as clouds. Q: And how does that belief you just spoke of apply to the project in this case?





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A: It’s sacred. I don’t really know how to answer that question, but to say that it’s very sacred and it’s about life and the importance of talking about it to protect the Nuvatukyaovi. It is very important to me. (130–31)

Preston refuses to speak further on “these terrorist thoughts.” But when asked what impacts the snow-­making project would have on his religion, he is clear: “It will destroy everything that we are as Hopi people and all people.” In fact, terrible things are already happening because humans have defiled the Peaks: the 2004 Indian Ocean tsunami, hurricanes, flooding—all “signs that we are disrupting natural life in its form as it is right now” (132–33). Berglan steers him back to the legal question at hand, whether the snow-­ making would impose a “substantial burden” on his religious practice.





A: It already has hurt me a lot. Right now sitting here my spirits are very low. My mind is confused. My heart is broken and confused. This is why I choose to come here, because I need to speak for the powerful Nuvatukyaovi. I need to show the mountain that I am doing my job, although it’s very hard and difficult for me to express my feelings, because nobody can see and understand how it’s affected my daily life and how life is at Hopi and all the surrounding world. It’s hard to express what I feel in my heart. (Through interpreter) It is hurting me. It hurts my heart. This has broken my heart. I am confused. I am here because the mountain means a lot to me. I have left my sons, my work, and my daily activities to be here because the Peaks give me the life. I am confused and I don’t know what to do about it. Q: Thank you, Mr. Preston. We certainly appreciate your being here and certainly take all the time you need to collect yourself. What impact would this project have on your culture? A: When you use the word “impact,” all I can think about is terror. Q: Effect. What effect would this project have on your culture? A: It would be a total effect of destroying our whole culture. It’s already happening. (Through interpreter) I am sad. Our life is all broken up. It’s already broken up. Nobody cares who we are. No one has respect for us. I guess we’re nobody. Nothing is complete. I am very sad.

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Q: And you say that you’ve already been hurt a lot. Would using reclaimed water make it worse? A: Yes. Q: And how? A: In every way. People only see the outside of the mountain. The mountain has great powers within. Just like you people see me sitting up here. You only see the outside of me, but you can’t see how much my heart has been destroyed. (Through interpreter) The only one thing that I depend on, which is the mountain, that mountain, inside that mountain is strong medicine. We know what is inside that mountain. Life is inside that mountain. Life is the most important thing to me. If I did not understand the question, you can ask me again. Q: I was just wondering how specifically reclaimed water would make your—how you are hurting worse. A: Reclaimed water, as I understand, is water that humans try to purify. But there’s no human being that can purify anything. This belongs to the supreme being that put us here, put the things in their places to do their job is what they were asked to do. The reclaimed water is destruction. It will contaminate all that is there and all the surroundings, because as a Hopi person, I was taught and I believe no matter what it is, you have a spirit. To me they’re alive. This is why I can communicate with them. Stillness with myself makes me understand who they are and how much it’s destroying them. And by using reclaimed water, that’s total destruction. It will never be the same. (134–36)

Perhaps aware of how his apocalyptic warnings might alienate his non-­Hopi audience, Preston stresses that he is “a poor and humble being,” not a “mean person” but a man who prays that his adversaries and everyone in the courtroom have “a good life” (133, 141). Soon, Preston is cross-­examined by an attorney from the US Department of Justice, Tom Clark. Clark represents the US Forest Service, which leases the ski area, called the Arizona Snowbowl. “It’s a privilege to have the opportunity to speak with you today,” Mr. Clark says. “And I would like to add that I’ll be asking you questions, but I would like you to bear in mind that like you, I’m not a



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mean person, and like you, I am humble, and like you, I have a job to do. I’m not here to make you uncomfortable or to be disrespectful in any way” (141–42). Of course, Clark’s job is to undermine Preston’s testimony. Are you aware, he asks, that the Hopi Cultural Preservation Office, whose responsibilities include protecting sacred sites, has been consulted on, and in some cases approved, other construction projects on the San Francisco Peaks, such as cell phone towers, pipelines, wells, trails, and roads? Preston seems vaguely aware of these projects. “Well, from your standpoint, would it be a desecration to put a cell phone tower on the San Francisco Peaks?” “Yes,” Preston replies; but once again, he will not delve deeper into the specific tenets of his faith. A confused struggle ensues over what can be revealed given that the court has already issued a protective order limiting the disclosure of confidential religious information. But Preston is unmovable. He says that past openness has only led to more destruction of sacred places. “It’s all been done before. We’ve revealed information. . . . It’s not to help us. It’s just to get more. We’ve shared a lot. We’re just a speck on the map now. What more do they want?” (150–51). Again and again, Preston moves from the particular to the universal, individual fact to cultural experience, location to landscape. Again and again, the experts try to rein him in. Clark turns to the mixing of living and dead. Is Preston aware that people have died accidentally on the Peaks, in plane crashes for example? Preston says no. If reclaimed water that once contained minute traces of human blood and excreta from hospitals and mortuaries would destroy the Peaks, the Hopi way of life, and possibly the world, why not a plane crash, Clark suggests? “When a person is some place and something occurs that’s not expected, that’s different. It’s way different. We never know where and when we’re going to pass on,” Preston says (151). Clark persists. What about alterations to the Peaks that Hopis opposed in the past, including a previous expansion of the Snowbowl back in the 1980s? Why did that act of “desecration” fail to extinguish your religion, as many Hopis warned it would? And what about the White Vulcan pumice mine on the Peaks, which the Forest Service closed in 2000 after Indians complained? While that mine was operating, “it didn’t lead to the destruction of everything, did it?” “I know in my heart it did,” Preston replies. Their exchange seems to hit a wall. Clark wants to know about specific sites on the Peaks where Preston gathers herbs and visits shrines. Preston refuses

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to answer. A long negotiation among lawyers and the judge ensues. Preston is resolute. Janice Schneider, the Snowbowl’s attorney, steps in.



Q: Are you opposed to any snowmaking on the San Francisco Peaks, regardless of the source of water? A: I’m not opposed to the snowmaking of the Creator. Q: Would any snowmaking by man using a different source of water, for example, pure water, surface water or groundwater, but created by man, in your view be a desecration? A: Yes. That’s not our job. (160)

This vital blow delivered, Schneider asks Preston to confirm whether a long list of sites in Indian country are sacred, and whether they are owned by the federal government. “You keep on asking me that same thing,” Preston says. “And I’m going to say that when you use the word ‘ownership,’ we don’t believe in one person owning any piece of land. So I continue to say I don’t know.” The list goes on: Chaco Canyon, Mesa Verde, Mount Taylor, Zuni Salt Lake, Springerville, Casa Malpais, the Hopi Salt Trail, Roosevelt Dam, the Mogollon Rim, Bill Williams Mountain, Navajo National Monument, Navajo Mountain in Utah, Navajo Mountain in Northern Arizona, the Grand Canyon . . .

Q: Besides the sites that we’ve just discussed, there are other sacred sites as well to the Hopi people; isn’t that right? A: Yes. Q: There are hundreds of other sites; isn’t that true? A: There are many, yes. Q: There are thousands of others sites; isn’t that true? A: There are many, yes. (160–64) SACRED SPACE AND CULTURAL SURVIVAL

Why have courts refused to extend First Amendment protection to places like the San Francisco Peaks? This is one of the most troubling questions in the study of American sacred space.2 Since the mid-­1970s, Native claimants have tried again and again to restrict development at sacred sites by invoking their right to free exercise, and again and again they have failed. This failure has not been entirely predictable. During this same period, Native Americans have re-



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gained substantial religious freedom in areas that are not coded as “religious”— the repatriation of stolen objects, for example, and the restoration of traditional fishing grounds.3 But when it comes to explicitly sacred places on public land, they have essentially gotten nowhere.4 There are now strong precedents for allowing commercial and recreational activity of almost any kind in places that are clearly essential to the practice of Indian religions. As Justice Sandra Day O’Connor infamously argued in 1988, even public land uses that can be expected to “virtually destroy” a Native religion are permissible so long as they do not “coerce” Indians into violating their religious beliefs, a seeming contradiction that Justice William Brennan called “cruelly surreal.”5 For many Native Americans, this issue touches an acutely painful region of collective memory. After all, these lands were taken by the United States and repackaged as “public space.”6 Now Indians must stand by and watch while non-­Indians use them as they please. Yet to air their grievances in court, they must engage in a cultural contest that some find almost equally painful, exposing their traditions to the harsh, probing light of secular law. They must become both properly “religious” and “reasonable” in the eyes of a legal system that has no language for land-­based cultural tradition.7 Some feel it has become a hopeless task. When Bucky Preston said, “No one has respect for us. I guess we’re nobody,” he voiced what appears to be a widespread sense of resignation. By studying the trial in which Preston and others struggled over the meaning of desecration on the Peaks, this chapter explores this cruelly surreal situation. It does not examine the lived reality of Indian sacred geographies, but looks at the language games that make those geographies legally legible.8 It tells a story about translation and mistranslation. What were the interpretive frameworks that made the San Francisco Peaks visible to the secular eye? What stories and stereotypes did the actors in this social drama use to make sense of this sacred place? And how were those stories and stereotypes used to stop the plaintiffs from deciding how it should be used? As many critics have recognized, answers to these questions lie in law’s failure of religious imagination, in its persistent unwillingness to understand Indian religions on anything like their own terms.9 But they also lie in law’s failure of geographical imagination, in its inability to conceive of landscape as anything more than property or, at best, as a symbolic accessory to spiritual life. It is a failure, I argue, that arises in part from the concept of “spirituality” itself. Ineffable, irrational, and ingrained in individual experience, spirituality is imagined by many as a more authentic and universal alternative to “institutional” religion.

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By others, however, it is imagined as a shallow, inauthentic copout, a concession to the hyperindividualism of secular society. The history and sociology of this debate has been thoroughly explored.10 Its geography has not. At the heart of this geography is an idea I call the “spiritual gaze.” This is a way of seeing imagined to belong to a particular kind of religious subject: inward-­looking, mystical, in tune with nature, theologically unconstrained. Deeply rooted in the protestant Romanticism of the wilderness preservation movement, the spiritual gaze centers on the emotional experience of the solitary viewer, profoundly moved by the sublime otherness of Nature.11 It sees landscape as the symbolic revelation of divine power, a sublated emblem of transcendence. As environmental historians have clearly shown, those who see this way have long felt uncomfortable with the idea of “working” landscapes.12 Yet for many Native Americans, sacred landscapes are just that. By “working landscape” I do not mean productive, private property in the capitalist sense, or even a place of communal labor. I mean a landscape of cultural reproduction, one that requires ritualized care and cultivation to ensure the survival of religious community. Such landscapes are living things, and as such they make strong, practical demands on those entrusted with their safekeeping. To deny those demands is to court disaster. In this sense, there is nothing “spiritual” about them. They are landscapes of cultural survival. The idea of the spiritual gaze has not served American Indians well, at least not in the legal arena. Even sympathetic courts have tended to depict Native geopiety as a vaguely animistic offshoot of Reasonable Religion. In the words of one legal expert, when Native claimants enter the world of the First Amendment, they are lumped together with “long haired guys with bongs and microbuses,” radical individualists who demand constitutional protection for their New Age innovations. Worse, they are seen through the mythological lens of the “vanishing Indian” as postcolonial imposters, inventors of tradition.13 This stereotype is only strengthened when Native claimants turn to the rhetoric of ecological holism, natural purity, and nonscientific causality, or what would once have been called “magic.”14 Unfortunately, it may also be strengthened when they turn to the rhetoric of psychological victimization—all of which Preston did in his 2005 testimony. Relying on these tropes, courts have reduced complex and variegated religious practices to therapeutic catchphrases: “spiritual fulfillment,” “spiritual satisfaction,” “spiritual well-­being.” These tags grossly distort the relationship of complete physical and social dependency that Bucky Preston tried to explain



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in his testimony, the literal derivation of life from landscape. “To me they’re alive,” Preston said of the Peaks, not, “It’s as if they’re alive.” As former Hopi vice chairman Vernon Masayesva pointed out in the epigraph to this chapter, such a belief—that “a rock contains the spirit of God”—is vaguely analogous to the Catholic belief in transubstantiation. The bread is not “like” the body of Christ; it is the body of Christ. Closer points of comparison can be found in the long history of colonial encounters with racialized, “primitive” practices such as “totemism,” “fetishism,” and “spirit possession,” all of which were defined by their “untranscended materiality.”15 Although secular law has formally accepted modern versions of these practices as belonging to the category of religion, it still struggles with their attribution of agency. According to the semiotic ideology of religious freedom, a rock cannot act; it can only represent. Many scholars have argued that a legal culture based on Protestant tradition, which is portable and placeless, simply cannot make sense of such radical rootedness, and they agree that courts have therefore applied an essentially Christian and thus inherently discriminatory definition of religion to Native American traditions.16 There is considerable truth to this claim, but the problem is more subtle. Law is not simply a vehicle for contesting premade religious ideologies. It shapes and defines those ideologies. Over three decades of litigation over sacred lands, an implicit theory of Native motivations has emerged, one that ties the spiritual gaze to demands for cultural restitution. Consider Preston’s final exchange with Schneider. If there are thousands of sacred sites for the Hopi alone, she suggested, where do we draw the line? Is “sacred space” just a ploy to regain sovereignty over the public domain, to “take back” the frontier in the name of religious freedom? Driving this question is a characteristically secular suspicion of territorial religiosity. In many ways, it is the same suspicion that paints a hilltop cross or a school nativity scene as a declaration of Christian dominion, only now it serves the secular state. To understand how this suspicion has worked against Native Americans, we must pay close attention not just to the cultural specificities of land-­based faiths, but also to the cultural specificities of secular law. In the courtroom, what Hussein Agrama calls the “questioning power” of secularism emerges, quite literally, in questions.17 Hence, this chapter is about the kinds of questions that lawyers and judges ask Indians, and about how Indians, as strategic, self-­conscious legal actors in their own right, try to answer those questions in a language that courts can understand.

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SACRED PLACE, SECULAR LAW

The social drama of sacred lands began in the early 1970s, when Native Americans began asserting a wide range of legal rights to place-­based traditions, including religious worship in the public domain.18 In some ways, this campaign started on a promising note. In 1970, after decades of lobbying by Native activists and their non-­Native allies, the United States returned Blue Lake to the Taos Pueblo, restricting this ancient site in northern New Mexico to exclusive use by enrolled tribal members. It was a move that attracted national attention and symbolized what some hoped would be a new era in federal Indian policy. This hope did not last long.19 Seven years later, a district court rejected the first major free exercise claim to a sacred site, and for reasons that would become distressingly familiar to Native claimants. At 309 feet high and 278 feet across, Utah’s Rainbow Bridge is reputed to be the world’s largest natural span. It is completely surrounded by the Navajo reservation but was placed under federal jurisdiction when it was designated as a national monument in 1910. Sixty years later, the waters of Lake Powell beneath the Glen Canyon Dam began to creep toward the bridge, and Friends of the Earth sued to lower the lake’s level. Not surprisingly, this hoped-­for alteration of the Colorado River’s flow regime proved controversial, in part because many in the government saw the rising waters as a boon to the regional economy. Once hidden away in a remote side canyon, Rainbow Bridge would now be accessible to the lake’s recreational boaters and tourists. When Friends of the Earth lost its case, the Navajo sued. Local Navajos believe the canyon is occupied by Holy People embodied in the rock, including two, male and female, united in the bridge. To them, both the water and the visitors posed a grave threat. They were “not merely changing the scenery of the canyon floor, but were threatening the integrity and existence of their living, spiritual sandstone guardians.”20 Their gods would literally drown, as many already had. Worse, disrespectful tourists were making it impossible to honor those who remained. In 1977 a federal judge dismissed their claim. The case, Badoni v. Higginson, established two important trends. First, the court openly cast doubt on the plaintiff’s sincerity. Despite their “severe emotional and spiritual distress,” it argued that there was no evidence that Rainbow Bridge had “anything approaching deep, religious significance to any organized group, or has in recent decades been intimately related to the daily living of any group or individual.”21 In fact, the Navajo from the Shonto community who worshipped at the site



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freely admitted that their ancestors only discovered it in 1863, when they hid in the canyon from marauding soldiers led by Christopher “Kit” Carson. But this did not make it any less sacred. Quite the reverse, it was the Holy People in the canyon and other hiding places who had protected them from Carson’s scorched-­earth campaign. With the help of the historian Karl W. Luckert, the Shonto Navajo were able to document a century of ceremonial practice at the bridge, but without a bona fide record of “religious antiquity” they were cast as dissembling opportunists.22 A century was apparently insufficient time to establish true sacrality. Never mind that Gettysburg was consecrated by war in the very same year. The second major theme was property. Put simply, the court argued that since the Navajo did not own the land, they had no right to prevent the government from flooding it and opening it to public use. Public space was “for everyone.” Borrowing a deeply misleading analogy from the defendants, it wrote, A person might sincerely believe that he or a predecessor encountered a profound religious experience in the environs of what is now the Lincoln Memorial in Washington, D.C., and that experience might cause him to believe that the Lincoln Memorial is therefore a sacred religious shrine to him. That person, however, could hardly expect to call upon the courts to enjoin all other visitors from entering the Lincoln Memorial in order to protect his constitutional right to religious freedom.”23

The analogy was misleading not just because it misrepresented the Navajo’s request (they never asked to close the bridge to public use, only to manage it in a way that respected their religious beliefs), but also because it likened their beliefs to those of a spiritual outsider, someone who believed that one’s “profound religious experience” should trump the rights of his fellow citizens. Navajo religion was made to look like the “Church of Me.” Although an appeals court rejected the first argument, confirming that Rainbow Bridge was indeed a sacred site, it supported the second, arguing that forcing the government to lower the lake and rein in tourists would violate the Establishment Clause by creating a “government-­managed religious shrine.” The law had spoken: any reasonable American could appreciate that Rainbow Bridge was not for Indian eyes alone. Similar reasoning guided another important case from this time, Sequoyah v. Tennessee Valley Authority. In this case, Cherokee plaintiffs were fighting construction of the Tellico Dam on the Little Tennessee River in Monroe County.

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They claimed that flooding the river valley would cause “irreversible loss to the culture and history” of the tribe by flooding a sacred landscape thickly layered with religious and historical meaning. As retold by historian Peter Nabokov, the valley contained a wide range of sacred places, chief among them the “Peace” capital of Chota, a regional civic center that was “the tribe’s equivalent to colonial Williamsburg or Philadelphia.”24 Densely populated with both spirit-­beings and places of social memory, the valley became a site of Indian pilgrimage after the Cherokee had been driven out by the early nineteenth century. When construction on the dam began in the 1960s—not to produce energy but to make room for the burgeoning flatwater recreation industry—the Cherokee joined forces with archaeologists and environmentalists to oppose the project (including Supreme Court Justice William O. Douglas, who was apparently most concerned about losing Tennessee’s finest trout stream). This struggle entered the annals of American environmental politics through the landmark Supreme Court case TVA v. Hill, which environmentalists lost but helped bring about the Endangered Species Act of 1973 and enshrined the three-­inch fish known as the snail darter in the American environmental imagination. It also left the Cherokee to fight the dam on their own, not as an environmental abomination but as an infringement of their religious freedom.25 As in almost every case to follow, the implicit question posed by courts was, “What is the nature of land-­based religion?” Whether Cherokee religion was a real religion was a question carefully disavowed. “Orthodoxy is not an issue,” the Court averred. “The fact that Cherokees have no written creeds and no man-­made houses of worship is of no importance. The Cherokees have a religion within the meaning of the Constitution and the sincerity of the adherence of individual plaintiffs to that religion is not questioned.” Yet in practically the same breath, the Court noted pointedly that the Cherokees did not know the precise location of Chota until TVA archaeologists found it, and that there was no evidence that other Cherokees, aside from two plaintiffs, had made pilgrimages to the valley during the past century. It was their “personal preference,” not beliefs “shared by an organized group,” that made the site sacred. For these reasons and others, the Cherokee failed to prove that the Tellico Valley was “inseparable from the[ir] way of life,” was “the cornerstone of their religious observance,” or played a “central role in their religious ceremonies and practices”— all considered essential according to free exercise jurisprudence at the time. On the contrary, the Court argued, it was not religion but “cultural history and tradition,” “tribal and family folklore,” that lay at the bottom of Tellico Reservoir.26



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Badoni and Sequoyah were both decided in 1980, two years after the passage of the American Indian Religious Freedom Act (AIRFA), which contained a toothless provision to protect sacred sites. Within three years, two more important losses seemed to seal the fate of sacred lands. The first, Crow v. Gullett, involved one of the most hotly contested places on the Plains, Bear Butte on the eastern border of the Black Hills, which the Tsistsistas, or Cheyenne, believe to be their birthplace, and which the Lakota also consider as sacred.27 Both tribes have long made pilgrimages to the butte to embark on vision quests, an extremely demanding ritual practice that requires privacy and peace. Nevertheless, when South Dakota turned the butte into a state park in the 1960s, it installed viewing platforms for visitors to observe Indians on their quests, much as they would observe bear or buffalo. By the early 1980s, when the state announced that it would expand tourist facilities at the site and temporarily restrict access to Indian pilgrims, it received more than 10,000 visitors a year. For the two tribes, the situation had become intolerable. In one of their briefs, they complained that the state had tried “to make a zoo out of [their] people’s church.” Once again, however, the courts ruled that they were not protected by the First Amendment, arguing that “the free exercise clause places a duty upon a state to keep from prohibiting religious acts, not to provide the means or the environment for carrying them out.”28 Just because the Indians were disturbed did not mean they were oppressed. One year later, the first attempt by the Navajo and Hopi to block development at the Snowbowl, Wilson v. Block, was denied on similar grounds. Their problem, the court reasoned, was not a true restriction on the “freedom to believe,” but simply “spiritual disquiet.”29 That same year, the stage was set for the first and only Supreme Court case on religious freedom and sacred lands, Lyng v. Northwest Indian Cemetery Protective Association.30 Reversing the trend set by the previous four cases, a district court in Northern California ruled that a government plan to build a six-­mile logging road through the Chimney Rock area of the Six Rivers National Forest would infringe on the First Amendment rights of three tribes, the Yurok, Karok, and Tolowa, who, much like the Tsistsistas and Lakota, needed peace and environmental purity to complete strenuous “power quests.” In this notorious case, Justice O’Connor codified the spiritual gaze as a criterion for invalidating sacred lands claims. She freely admitted that the logging road and ensuing timber harvest could have “devastating effects” on the tribal religions. Yet like the judges in Sequoyah and Badoni, she contended that the government’s interest in managing its own property outweighed Indian inter-

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ests in preventing this calamity. As precedent, she pointed to another free exercise case, Bowen v. Roy, in which a man of Abenaki descent claimed that issuing his daughter a Social Security number would steal her spirit. Both cases put courts in the same quandary, O’Connor reasoned: However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires. A broad range of government activities—from social welfare programs to foreign aid to conservation projects—will always be considered essential to the spiritual well-­being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours.31

As Vine Deloria Jr. cuttingly remarked, “Thus ceremonies and rituals performed for some thousands of years were treated as if they were personal fads or matters of modern emotional, personal preference based upon the erroneous assumption that belief and behavior can be separated.” More subtle, however, was O’Connor’s appeal to the landscape idea, linking these “needs and desires” to the plaintiff’s demands for “privacy,” “purity,” “undisturbed naturalness” and “unobstructed views.” By highlighting these keywords from the Indian complaint, O’Connor suggested that these religious requirements were, in fact, merely aesthetic preferences. They were an expression of taste. Moreover, they had dangerous territorial implications. With a tee-­up of monumental proportions, she wrote, “No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property.”32 In other words, this seemingly harmless desire for “purity” could underwrite an outrageous Indian land-­grab. Not just property rights were at stake, therefore, but also a way of seeing. In O’Connor’s eyes, the plaintiffs were claiming rights to a view, not to a place. With this reduction of sacred landscape to the spiritual gaze, Lyng became the law of the land.



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Lyng is often lamented as a tragic emblem of the triumph of property rights and secular rationality over land-­based spirituality. This depressing history has led many to overstate the incommensurability of Native American and Euro-­ American geographical imaginations, as well as the ideological homogeneity of secular law. After all, the court was sharply divided. As Brennan put it in his outraged and—in its own way, highly influential—dissent, in Native religions “land is not fungible” but “a sacred, living being.” By ignoring this fundamental difference with Western religious thought, he argued, the Court had left Indians with no constitutional defense “against perhaps the gravest threat to their religious practices.”33 It thus continued to impose both Christian and capitalist ideologies on colonized peoples, or so more radical critics since Brennan have argued.34 But Lyng also codified a particular model of secular landscape ideology, one that equated the plea for environmental purity with the search for “spiritual fulfillment” and desecration with “spiritual disquiet.” Despite three decades of organized resistance, this model has proved remarkably robust. THE PEAKS ON TRIAL

In the story of skiing on the San Francisco Peaks, which has been told and retold by lawyers, judges, journalists, scholars, politicians, and activists since the 1970s, beginnings matter.35 Do we begin with the volcanic upheaval that created the Peaks eons ago, long before scientists say humans crossed the Bering Strait to North America? Or do we begin with the Hopi warrior gods Pokanghoya and Polongahoya, who made the Peaks “to relieve the earth’s monotonous flatness,” creating a home for the kachinas (katsinam), the spirits of Hopi ancestors who appear as clouds to bring rain from the Peaks in time for planting corn? Do we begin with the seventeenth-­century Franciscan missionaries who named the Peaks after their patron saint, and who are said to have forbade the Hopi from using their own name for the Peaks?36 Or do we begin with the Navajo myth of Changing Woman, who went through puberty on the Peaks, known in Navajo as Do’ko’oslid (“It Was not Melted Off,” or “Never Thaws on Top”), and then gave birth to twins from whom the Navajo people are descended? Do we begin with the myths of the Hualapai, Havasupai, or Western Apache peoples, all of which involve the Peaks, or with the myths of the six or seven other tribes who hold the mountain sacred? Or do we begin with the founding of the Coconino National Forest at the beginning of the twentieth century, and the subsequent establishment of a small ski area on the Peaks in 1937? Do we begin when the

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Hopi and Navajo, longtime adversaries, joined to fight an expansion of the resort in the 1970s, a project that Abbott Sekaquaptewa, chairman of the Hopi Indian tribe, warned would “destroy our present way of life and culture” and reduce “our existence as a society” to “a mere fairy tale”?37 Or do we begin in 1983, when the Indians’ legal claim, which expressed the full historical burden of conquest and conversion, was rejected as “spiritual disquiet”?38 In a way, all of these beginnings culminated in the last. It is hard to imagine a place more thickly layered with memories of colonization. Indeed, the legacy of conquest is literally written on the map. The tallest peak, Humphrey’s, was named for General A. A. Humphreys, the Army Corps of Engineers chief who authorized the so-­called Wheeler Survey west of the hundredth meridian, famously photographed by Timothy O’Sullivan.39 Agassiz Peak was named for Louis Agassiz, the famous naturalist and ardent scientific racist who collected Indian body parts as zoological specimens.40 Doyle Peak was named for Allen Doyle, a local cattleman and well-­known wilderness guide at the turn of the century, and Fremont Peak for John C. Fremont, the famous explorer and, according to some historians, pitiless hunter of Native peoples.41 War, science, exploration, conservation: the methods of empire, all contained in four place-­names. The Peaks dominate the skyline from much of the Navajo reservation and can be seen from all of the Hopi villages. They have long been recognized as sacred to a number of local tribes. As far as I know, no one has ever attempted to give a comprehensive account of what these tribes believe about the mountain. It would be a Sisyphean task. For the Hopi and Navajo alone, the two groups whose claim on the Peaks is most widely discussed, the mountain plays a central role in almost every aspect of religious practice and belief. In the struggles of the past thirty years, however, legal actors have singled out certain practices and beliefs as more salient than others. Foremost among these is the Hopi katsina cult. The katsinam (better known to non-­Hopi as “kachinas”) are spirit beings who come to the Hopi villages from their dwelling places during corn-­growing season, bringing rain, gifts, and instructions on how to live properly. One of these dwelling places, or katsinki, is Nuvatukya’ovi, which marks one of the Hopi’s four cardinal directions. Through their songs, which Hopis are expected to sing “at work and at play every day” from toddlerhood to old age, katsinas teach important moral lessons and perpetuate the Hopi way or path, or Hopi votskwani. For this reason, the “monument shrines” where they live pro­ject “a solid presence in the sense of a church



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but also a spiritual force in the landscape.” As “sources of ethical guidance and spiritual renewal,” they “embody values that are alive in the collective consciousness of the people.”42 Anything but passive symbols, they actively anchor a landscape of ethical practice and religious labor.43 The katsinam come to the Hopi villages toward the end of the second moon phase after the winter solstice, usually late January, and the Hopi prepare for their arrival by depositing prayer feathers at special places outside the village. This ceremony is meant to achieve spiritual purity, which is required for the kachinas to return. These ritual practices are intimately connected to everyday life, for the Hopi believe that to raise the corn around which their society symbolically revolves, they must have faith that “someone will be there to help them raise this corn so that they may be able to live and survive.” Indeed, kachinas are clouds as well as the spirits of Hopi ancestors. They bring water when the Hopi are morally deserving, which requires (among other things), participating in the traditional kinship system and the Kachina Society, into which one is initiated at puberty. The kachina songs keep the Hopi on the straight and narrow, as it were, following the path toward the good life. For this reason, interfering with the katsinki on the Peaks is not just unsettling or outrageous in an abstract sense. It tears at the fabric of everyday life, including the natural cycles upon which that life depends.44 This connection with daily life and cultural survival is also present for the Navajo, although for very different reasons. Do’ko’oslid is one of four Navajo sacred mountains marking the cardinal directions and the limits of their precolonial homeland, acting as the Western wall of their collective hogan or house. Indeed, Navajo houses are themselves oriented toward these mountains, and “so ingrained is this sense of geography that Navajos raised in the old ways will organize just about any domain of knowledge, even abstract or non-­Navajo things, by associating the various components of the domain with the four directions” and the four mountains that mark them.45 The mountains appear on the Navajo Nation Flag and Great Seal, and they are at the center of the most common Navajo ceremony to grant good fortune, the Blessingway.46 Do’ko’oslid is often said to be the home of specific Holy People, but according to one scholar of Navajo religion, “Navajo mountains are gods; they are not only places at which gods live.”47 Because of the association with Changing Woman, water from the Peaks is sometimes used in puberty ceremonies, or kinaalda. Found in most traditional Navajo households, Medicine Bundles contain soil from all four cardinal mountains, and many believe that these act as

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prayer-­conduits to the mountains themselves. In this sense, Navajo households are physically linked to the Peaks. Yet they are separated by the state. Among the most powerful of sacred places—indeed, “the principal source of Navajo strength and prosperity,” according to one researcher—all four mountains lie outside the reservation and under federal jurisdiction.48 The point is this: Neither the Hopi nor the Navajo worship the Peaks at a distance, nor do they see them as a symbol of divinity. Ritual practitioners from both tribes are connected to them through intricate webs of meaning and practice. Furthermore, they are connected to them quite literally through processes of death and rebirth. They are woven into a landscape of cultural reproduction. And this is just for these two tribes.49 By many accounts, Indians in the Four Corners region were never happy about skiing on the San Francisco Peaks.50 But organized opposition on religious grounds was impossible until the late 1960s, when a plan to greatly expand the Snowbowl sparked a local outcry, and Navajo and Hopi plaintiffs joined antidevelopment forces to fight on environmental and religious grounds. The legal and political wrangling continued throughout the 1970s. Then, in 1980, the Forest Service finally approved a new expansion plan. In 1983 Wilson v. Block was decided in the government’s favor and soon a paved road, new chairlifts, and dozens of acres of new trails appeared. As a consolation prize of sorts, the Park Service designated several thousand acres of the Peaks as the Kachina Peaks Wilderness in 1984. As a safeguard against further development, the Navajo also acquired a Forest Service grazing lease around the wilderness area.51 The Snowbowl changed hands again in the 1990s and, after two bone-­dry winters in 2000 and 2001, its owners announced that they wanted to make snow.52 The plan—which required a full environmental, archaeological, and religious review from the Forest Service—was to build a fourteen-­mile pipeline from Flagstaff to the slopes. Other upgrades were also proposed, including a “snowplay” area for sledders, a high-­speed ski lift, sixty-­six new acres of skiable terrain, and a new lodge. Again, the Flagstaff area was embroiled in political controversy, and again, a coalition of Native activists and environmental groups (including the Sierra Club and the Center for Biological Diversity) joined to oppose the expansion. This time, however, the law—and the national religious politics behind it—had changed significantly. In 1993 Congress passed the Religious Freedom Restoration Act (RFRA) in response to the Supreme Court’s decision in Employment Division v. Smith,



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a case involving two members of the Native American Church who were fired from their jobs as substance-­abuse counselors because they used peyote. In an extremely controversial majority opinion, Antonin Scalia bypassed fifty years of free exercise jurisprudence and returned to the court’s stance in Reynolds v. U.S., a nineteenth-­century case banning Mormon polygamy, which held that individual religious beliefs do not exempt citizens from complying with generally applicable laws. This represented a radical shift in legal philosophy, and it outraged a broad range of religious and civil liberties groups from the Right and Left, already angry about the Court’s decision in Lyng. Although Scalia came to be seen by many liberals as a dogmatically Christian, antisecularist justice, the decision was perceived as “typifying a hostility common in the hypersecularized consciousness of the time.”53 RFRA was intended to reverse Smith and restore a more religion-­friendly interpretation of the free exercise clause. Crucially, it held that Government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Since then, there has been on ongoing legal debate—quite fierce at times—about what “substantial burden” means. This was the linchpin of Navajo Nation v. USFS.54 If the law had changed, the basic contours of public opinion had not. Since the 1970s, the strongest case against protecting sacred lands was territorial. In February 2002 the left-­leaning Arizona Daily Sun ran a vituperative editorial with the headline, “Tribal Sovereignty over Peaks a Stretch,” demanding that “tribal activists” face some “inconvenient truths.” The first is that the San Francisco Peaks, although regarded by some Native Americans as sacred, are managed largely by the U.S. Forest Service. As such, they are “off the reservation,” just as is the Moon, which Navajos also hold sacred (they oppose, among other things, landings and the spreading of Gene Shoemaker’s ashes there). Neither the Peaks nor the Moon is likely to be handed over to Native American control anytime soon.

No other religious or ethnic group would be allowed to mount such an outrageous and unreasonable campaign, the paper fumed. To insist on the Peaks’ absolute purity was to deny the realities of life in an impure modern world. The Peaks are simply part of a natural landscape that native peoples have elevated to unnatural stature and to which they have attempted to extend

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a religious sovereignty. It’s one thing to worship a landscape feature from a distance. It’s another to demand that the feature—whether the Moon or the Peaks—be kept in a pristine state.

Dismissing the notion of tainted water as “wholly a cultural construct, not a scientific one,” the paper opined that Indians had already been allowed to push the limits of church-­state separation by making the Peaks into a legally designated Traditional Cultural Property; now it was time to draw a line in the sand. America is not a “theocracy,” they concluded. “Religious groups are free to worship and express their beliefs. But they are not free to extend those beliefs and practices into the civil arena.”55 There was a strong backlash, which included an intense and often openly racist exchange on the Daily Sun’s website and letters page.56 Within a few days, the paper was forced to issue a lengthy apology.57 The episode revealed the depths of anger and mistrust on both sides of the issue, but it also revealed just what was at stake for many Snowbowl supporters: Indian “religious sovereignty” over a landscape that had been elevated to an “unnatural stature.” Instead of worshipping the Peaks “from a distance” like properly civil observers, they were casting a territorial gaze. To make matters even more difficult for Indians, their most powerful former ally in the fight to block development on the Peaks, former Arizona governor and Secretary of the Interior Bruce Babbitt, changed sides. Babbitt’s involvement in the case was interesting not just because of his stature in national environmental politics, but because of how his public views reflected the religious and historical complexities of the controversy. As Interior Secretary, Babbitt was instrumental in shutting down the White Vulcan Mine, which produced pumice for making stone-­washed blue jeans. At a press conference to mark the closing of the mine, Babbitt stood with Native leaders and reflected on the profound sacrality of the Peaks, not just to Indians, but to his own Catholic faith. Franciscan missionaries had named it after their founder, he said, “the patron saint of ecology in my religion, who taught us as Catholics that the landscape is a direct manifestation of its creator, it is evidence of the presence of divinity in our midst, and that we have an ethical obligation to honor our Creator by honoring and respecting his work.” For Native and Christian alike, he continued, the mine was “purely and simply a sacrilege. Now, our society would not tolerate this kind of defacement of a Catholic church or a synagogue or a sacred place in religions that arrived with European settlers. And



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the question today, is how can we tolerate such a sacrilege in the cosmology and religions that we all share. This is a sacred mountain.” To mark the occasion, Indian activists presented him with a pair of stone-­washed jeans.58 It was not the first time Babbitt had sermonized about the mountain. In a 1996 essay on the universal “religious values” at the heart of conservationism, Babbitt wrote of a Road to Damascus moment that centered on the Peaks. Raised in a church “that kept silent on our moral obligation to nature,” he “always had a nagging instinct that the vast landscape was somehow sacred and holy,” especially the “mystical, evocative presence” of the Peaks. “To me, that mountain . . . remains a manifestation of the presence of our Creator. That I was not alone in this view was something I had to discover through a very different religion. . . . It was a young Hopi friend who taught me that the blue mountain was truly a sacred place.” Babbitt described being taken to kachina dance, to a ceremony involving rattlesnakes, and to sacred spring in the Grand Canyon where the Hopi had emerged from another world. “By the end of that summer, I came to deeply and irrevocably believe that the land, the blue mountain, and all the plants and animals in the natural world together are a direct reflection of divinity.”59 Not two years after helping to close White Vulcan, however, Babbitt infuriated Native activists when he signed on as chief environmental counsel of the law firm representing the Snowbowl, Latham and Watkins. Although he did not represent his client at trial, it was evident from Indian testimony that his influence was felt throughout. (One witness testified that Babbitt, the son of a prominent local family, had learned to ski at the Snowbowl and had visited it regularly ever since.) In the streets of Flagstaff and Prescott, protestors demanded that Babbitt “give back the pants.” AN OVERBURDEN OF IRREVERENT THINGS

After a complicated and contentious review process, Coconino National Forest Supervisor Nora Rasure announced in 2005 that the snowmaking plan could proceed. With the Center for Biological Diversity and the Sierra Club, the tribes sued, alleging violations of environmental law, historic preservation law, and RFRA. The first two claims were dismissed, leaving solely the question of religious freedom, to be heard at trial by Judge Paul G. Rosenblatt of the District Court of Arizona. Rosenblatt’s courtroom was filled to capacity every day of the trial, and protestors from throughout the region picketed outside.60

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To prove that the expansion plan would substantially burden their religions, the plaintiffs had to show that the desecration of the Peaks was more than symbolic. They had to make their embodied, practical relationship with the Peaks legally legible, which meant showing that spraying sewage on 777 acres of land would initiate a traceable causal sequence: prayers would be rendered ineffective, ceremonies would be abandoned, pilgrimages would end. Above all, they had to show that the reclaimed water had agency, that it would poison the mountain, negate its powers, and thus negate their own agency as religious practitioners. From the dead bodies leaching blood into the drainpipes of the Flagstaff morgue to the Rio de Flag water treatment plant, from the Snowbowl to the public squares in the Hopi Villages where Katsinam danced each spring, they had to narrate an evil geography of creeping pollution and socio-­ environmental decay, of “slow violence” moving through invisible capillaries in the cultural landscape.61 The job of the defense was to discredit this forensic narrative. It had to show not only that the purified water lacked agency—that it was clean and natural and safe, no different from the water that falls from the skies—but that life on the reservations would continue as usual when it was sprayed on the mountain: that the kachinas would still return each spring, that the Blessingway would still ensure good fortune, that the Holy People would not be offended. In short, it had to show that the plaintiffs misunderstood their own beliefs, that they were mistaken about the nature of this desecration, just as they had been mistaken about many alleged desecrations in the past. To play this subtle theological game, the defense not only had Enlightenment beliefs about the supremacy of science on its side; it also had the legal narrative of the spiritual gaze, codified in Lyng. The plaintiffs were letting their emotions get the better of them. The problem was all in their heads. The first six days of the trial were devoted to testimony by the plaintiff’s witnesses, mostly traditional religious practitioners from the Hopi, Navajo, Hualapi, Havasupai, and White Mountain and Yavapai Apache tribes. Questioning into their religious beliefs continually circled around the linkage between two central concepts, pollution and pain. This linkage was subjected to reinforcement and attack from three primary discourses: science, religion, and politics. With each new topic—wastewater treatment, pilgrimage, property rights, cosmology—each side struggled to assemble a coherent and durable picture of reality.



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The matter of pain hung over the trial from the very start—the psychic and emotional pain of the witnesses, but also the pain of the mountain and spirit-­ beings who inhabit it. Recall Bucky Preston: “My heart is broken and confused. . . . I am sad. Our life is all broken up . . . People only see the outside of the mountain. . . . You only see the outside of me, but you can’t see how much my heart has been destroyed.” How could perfectly clean water inflict this kind of psychic and emotional trauma, the defense asked? Moreover, with so much pollution already in Indian Country, from mines to clearcuts to casinos, and with so many places claimed as sacred, from individual mountains to reservations to the entire Earth itself, how could such a modest violation really be so painful? Answering these overarching questions required a delicate dance. On the one hand, to answer in purely psychological terms would have allowed the defense to paint them as thin-­skinned and unreasonable. It would reduce their grievance to “spiritual disquiet.” On the other, if they simply asserted effective causation—that the artificial snow would objectively damage the mountain and destroy their way of life—they risked looking like irrational zealots, obsessed with purity and control. Many Indian witnesses seemed to struggle with this double bind. Leigh Kuwanwisiwma, director of the Hopi Cultural Preservation Office, tried to explain the issue in both subjective and objective terms. “Emotionally, [the snowmaking] will give us a sense of resignation. It will have defiled the sacredness of the Peaks. And there’s also, even now, a feeling that perhaps this will ultimately have our Katsina people feel rejected and subsequently the effects on me, my children, and generations yet to come. I think it’s going to have a very, very profound effect on all, all Hopis.”62 Possibly thinking of the all-­important legal definition of “substantial burden,” he characterized “defilement” as “a burden of negative emotion” that “affects our psychology.” But he also defined it as a violation of “spiritual law,” of a “covenant” with the great spirit-­being Ma’Saw to care for the land, joined at the Peaks when the Hopi emerged into this world.63 Other Hopis were equally specific about how the polluted snow would affect their state of mind. “It affects the way you think and the way you prepare for a ceremony,” said Antone Honanie, leader of a Hopi religious society. “. . . Using this reclaimed water up there is something that you can’t get out of your mind when you’re sitting there praying, smoking the tobacco pipe that we pray with to these mountains.”64 Emory Sekaquaptewa, a well-­known Hopi anthropologist and former judge, tried to translate these practical concerns into social-­

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scientific language. For children, he explained, the Peaks are a kind of “fantasy,” but this fantasy matures into something very deep and complicated. “I think perhaps one way to say it is that when one grows up in this belief, it becomes— you become psychologically dependent upon this idea of Katsinas and their association with the mountains.” And this dependency has already been threatened by decades of legally sanctioned “profane” activity. Although the Hopi have learned to tolerate these profanations, Sekaquaptewa said, there can be “an overburden of irreverent things”—a psychological and spiritual breaking point. Once this breaking point is reached and faith is undermined, “the Kachina religion would simply be a performance for performance sake.” Its ceremonies would only “satisfy the individual’s purpose” and would no longer be “a religious effort in behalf of all the people.”65 In other words, it would become commemorative and symbolic, not unlike certain forms of Protestant ritual practice. Indeed, to illustrate the link between desecration and collective suffering, many witnesses made comparisons with Christianity. For example, Charles Vaughn, chairman of the Hualapai tribe, said that Indian attitudes toward the mountain, while “difficult to describe,” are “analogous somewhat” to a Christian view of sacraments. “The water signifies the blood of Christ,” he said. “The wafer or the bread signifies his flesh. How do you know that’s true? You take it on faith. Much the same as Indian people do. We take it on faith that this is a serious impact that would be unmitigatable in our estimation.”66 And faith, said one Hopi religious practitioner, can be defined as “believing from your heart right here [indicating]. What you’re doing is for the good of all people, just like you go to church.”67 One Navajo witness compared the mountain to Mecca; another said their medicine bundles are “their Bible.”68 Other Indian witnesses were less willing to engage in this kind of religious translation. Vincent Randall (Hastiin Nazelze), a council member of the Yavapai-­Apache tribe, was particularly unyielding. (Asked how he was doing that day: “I kind of feel like Tonto, but that’s all right.”) Appearing on the fourth day of trial, Randall was the first witness to reject the word “religion” (“that’s your language. It’s a way of life”) as well as the word “sacred.” He insisted that the court be precise in its depiction of Apache geographies. That’s your term “sacred.” That’s not my term. I talked about holy mountains this morning. I talked about God’s mountains. . . . Sacred to you is not



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the other terms. There are other places of honor and respect. You’re looking at everything as being sacred. There is not—there is honor and respect, just as much as the Twin Towers is a place of honor and respect. Gettysburg. Yes, there are places like that in Apache land, but there are four holy mountains. Holy mountains.

To desecrate one of those holy mountains, Randall explained, would be to substitute an “ichnomic God” for “the real God.” Whether it was a transcription error or he misspoke, it seems clear from context that what he meant was “iconic.” Echoing Sekaquaptewa, he seemed to be saying that defilement would reduce the mountain to an emblem or image, not a living entity. Moreover, he clearly indicated that this symbolic reduction would continue the pattern of oppression and abuse that began with colonization. Like Bill Preston and several other Indian witnesses, Randall moved quickly among spatio-­temporal scales, treating the trial as just one moment in a long story of violence and loss.69 Still other Indian witnesses fought the government’s strategy to cast doubt on their pain by refusing to define the landscape of the Peaks in quantitative, cartographic terms. Steven Begay, a Navajo hataalii or singer, as well as the assistant department manager of the Navajo Nation Historic Preservation Department, explained that Navajos “don’t separate our religion from our daily lives,” nor do they believe that what happens on 777 acres of the Peaks (a number frequently recited by the defense) can be isolated from the Peaks as a whole. Resisting a series of aggressive questions about the lack of physical contact between water and plants on different parts of the mountain, he said, “All things that occur on the mountain are part of the mountain, and so they will have connection to it. We don’t separate the mountain.”



Q: Now, you’ve made that very clear. I’m asking you, isn’t it true, there’s no physical contact? A: Physical contact in the sense that the top portion of the plant is on the eastern side of the mountain, but the roots, we say, could go anywhere on the mountain. Q: You don’t seem to want to answer that question, sir. Are you saying— is your testimony that the roots from that plant on the eastern side of the slope will grow through to the project area on the western side? [Objection, overruled]

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A: In our belief, they are all— Q: My question was about the roots, sir. A: And that’s my answer. They are connected.

Asked a moment later where precisely he performs the Blessingway ceremony, Begay insisted, “The whole mountain.” “No, sir. In Western terms please,” Clark replied, “where do you go to perform the Blessingway ceremony?” “On the entire mountain. We go on all directions of the mountain.” Norris Nez, another hataali, affirmed this resolutely holistic view. “All of it is holy. It is like a body. It is like our body. Every part of it is holy and sacred” (756–57, 913). Another witness was asked what would happen if the snow were sprayed on just one acre. Still a desecration, the witness replied. On one quarter of an acre, the lawyer asked? Even on one quarter of an acre. Even one square foot, he asked again? Even one square foot (214–15). Instead of fighting Western science, other witnesses stressed their psychic victimization. Joe Shirley Jr., president of the Navajo Nation, called the snowmaking scheme “a desecration of my Mother.” In the press, he had called it “spiritual genocide.” It’s like as a child, I’m standing right here and somebody is coming in and violating and raping my mother and that hurts—that hurts me just watching. . . . And I think going back to our own physical state as people, you know, what happens to a child when a child witnesses his mother, her mother being raped right in front of him or her. It affects the mind. It affects the psyche to where that child starts growing up with a burden, you know. He’s not a full child or she is not a full child anymore. (802–3)

Norris Nez took another tack, focusing on specific pollutants: excrement, water that has been used on sick people and for washing dead bodies, menstrual fluid (“There are all these women issues that are too delicate to address here”). Like the activists who spray-­painted “No shit snow” on Flagstaff walls and demanded that Snowbowl employees demonstrate the purity of the water by drinking it in public, these witnesses drew attention to the visceral repugnance of pollution, perhaps attempting to elicit feelings of outrage and disgust. From the outset, however, the Snowbowl’s strongest defense was scientific.



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If this so-­called A+ reclaimed water was clean enough to drink, they continually suggested, then how could it defile the mountain? Clearly aware of this question’s power, some Native witnesses fell back on a kind of secular double-­ speak. On the one hand, their beliefs were no more irrational or impervious to scientific reason than the beliefs of Christians. The sacred is the sacred, they suggested; it does not answer to science. Yet at the same time they asserted their beliefs were scientifically valid, and indeed resembled Western ways of scientific thinking, especially medicine. This strategy could produce dissonant testimony. For example, the plaintiff’s lawyers asked a government-­appointed hydrologist if he tested water for its “spiritual quality.”

A: I’m not sure I understand what you mean. Q: Well, the nature of our claim deals with religion. Do you test in your chemical matters chemistry tests [sic] for spiritual quality of water? A: I would not know how to relate water chemistry to spirituality. Q: So it’s fair to say that as a scientist you do not evaluate the spiritual use of water? A: Yes.

Other times, however, they claimed the mantle of scientific authority by calling expert witnesses and raising doubts about the safety of the water. This strategy proved particularly problematic for the Havasupai, who claimed that the reclaimed sewage would trickle down from the Peaks to their sacred springs and into Havasu Creek at the bottom of the Grand Canyon, along which the majority of the tribe lives, more than sixty miles from the Snowbowl. According to their creation myth, the human race began when their Grandmother was impregnated by snowmelt by the Sun Father melting the snow on the Peaks. As described in court, their religion revolves around this hydrological link between Peaks and canyon. Rather than portray this link as purely an article of faith, however, they claimed it was supported by scientific evidence. This opened the door to a systematic dismantling of their complaint by a defense team with much more scientific wherewithal. Hydrogeologists were called as expert witnesses and hours of detailed questioning were devoted to showing that the snowmelt could not possibly move from the porous volcanic landscape of the Peaks all the way to Havasu Creek. Staking their claims on the theories of a single scientist who seemed badly outgunned by the government’s experts,

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the Havasupai unwittingly allowed the defense to call their own credibility into question. Some witnesses navigated this perilous terrain by invoking science metaphorically. Larry Foster, a Navajo traditional “practitioner” or medicine man’s assistant, likened the artificial snow to a prick from a contaminated needle. “It doesn’t matter what the percentage is,” he said, “your whole body would then be contaminated. . . . The mountain is the living mountain. It is our grandmother” (214). Spraying polluted water “would be like injecting me and my mother, my grandmother, the Peaks, with impurities, foreign matter that’s not natural” (205). Frank Mapatis, a Hualapai spiritual leader, spoke of his fiduciary duty as a healer. He explained in matter-­of-­fact detail how he visits the Peaks once a month for a range of ceremonial activities, including prayer, collecting water, stones, and plants, and leaving offerings, including women’s placentas. Without these visits, he said, he cannot heal his patients, because his rituals are rendered powerless. The mountain is like a power point. . . . When you go over there and you place your feathers or your offerings there, it’s like you’re plugging into the power source. . . . That mountain is like a transmitter to the Creator and to the directions. So we have to plug into something, a source of power, of sacredness before we can begin to do our rituals. So when I go there, that’s what I do. That’s what I’m doing is I plug into that power. And then I go back and then I work on the person. (22)

As Mapatis went on to explain, spraying wastewater on this landscape would violate a “spiritual law” against mixing life and death. Because that water once contained blood from dead bodies, “it’s like you’re putting death onto that mountain, which would be a form of witchcraft or black magic.”70 Quickly switching metaphors, however, he said using water and plants from the polluted mountain for healing purposes would be “like malpractice” (16, 22, 41–44). Nevertheless, by appealing to scientific objectivity, the plaintiffs exposed themselves to a ruthless form of secular skepticism. When cross-­examining Mapatis, for instance, US Department of Justice attorney Jennifer Allaire and Snowbowl lawyer Janice Schneider forced him to agree that he had no “scientific knowledge” of snowmelt runoff or the water treatment process. They made him admit that he did not gather any objects or leave any offerings in the area of the Snowbowl, and that he could not even see the Snowbowl from the sacred



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springs he visited. And they asked him why existing uses, including septic systems, do not desecrate the mountain (52–66). With witness after witness, these questions were used to reveal not just ignorance, but to imply confusion and even deceit. They were also used to call the very idea of desecration into doubt. With witness after witness, the defense drew attention to other places in the region where Indians have fought with non-­Indians and each other over alleged acts of defilement. The list was long. It included the long-­running and bitter tribal dispute between Hopis and Navajos over coal mining in a former joint-­use area controlled by the Hopi Tribal Council, as well as other high-­profile conflicts over development on public lands. It also included more mundane uses of sacred lands that appeared to violate a tribe’s own religion. Clark, for example, noted that the Navajo dispose of waste from their own medical clinics in lagoons on the reservation, the entirety of which is considered sacred. If this is allowed, then why not “A-­plus reclaimed wastewater” in the form of pure, white snow? Much was also made of the White Mountain Apache’s own ski resort, Sunrise Mountain, a competitor to the Snowbowl located in a place held sacred by some in the tribe. The Apache operators make snow at this mountain, and they make it in part from treated wastewater that has been discharged into a nearby lake. Apache witnesses testified that the tribe was planning to expand their snowmaking capabilities. Other, less obviously damning sites and projects were mentioned at various points in the trial. The overall effect was to suggest a pattern of religious hypocrisy. Were these places sacred, or weren’t they? Moreover, through frequent references to the number (hundreds? thousands?) and spatial extent of sacred lands (as big as Arizona? the whole Southwest?), it was to imply an unreasonable and even dangerous impetus toward territorial expansion. By playing this relentless game of comparative geography, the defense called the very concept of sacred place into question. This was also accomplished by depicting Indian religion as more “flexible” and “modern” than its practitioners claimed. For instance, after extensive testimony about the collection of tobacco on the Peaks, DOJ attorney Tom Clark noted that self-­described “traditionalist” Larry Foster used a plastic bag to keep his bundle fresh.

Q: So there are concessions to modern times in your medicine bundle, aren’t there?

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A: I use the plastic bag because I want to keep the tobacco fresh. Q: And it probably works very well, doesn’t it. A: It works. Q: But my point is, traditions are flexible, are they not, and so the plastic bag facilitates keeping the tobacco fresh. A: When we do the ceremony, I don’t use this bag. (212)

But this knowing relativism also had a more sinister side, a shift in tone and even ontological register. More than once, the defense asked Hopi witnesses if the kachinas still returned to the Hopi villages despite prior defilements. They also made at least one Hopi witness confirm that since the last Snowbowl lawsuit, there has been something of a Hopi religious revival, with increasing numbers of young people participating in the Kachina Society. And not only the Hopi were singled out for this demeaning line of questioning. Apache witnesses were asked about their spirit-­beings, or gaan, and whether they continued to operate in the world despite maltreatment by non-­Indians. It looked very much like a direct attack not on scientific but on theological grounds. In short, the defense portrayed the plaintiffs’ beliefs as contradictory, unreliable, and even insincere. And they did this while continually professing deep respect for their integrity and sincerity. To show that it was fighting in good faith, the government made overt displays not just of respect but reverence for the Peaks. As the face of the Forest Service, for example, Nora Rasure seemed to go to great lengths to show her emotional and spiritual credibility by telling of conversations with Indians in their homes. “And they’re just sharing with you their just innermost feelings,” she said. “And those meetings were quite moving for me.” “In what sense were they moving to you?” her lawyers asked. Well, you got—I got such a sense of people’s connections to the Peak, how they saw it and thought about it every day, how it had been part of their history, how they value the same things I valued like the natural resources. One of the reasons I work for the Forest Service is because I really value public land. And I enjoy the outdoors, the environment. The people that I met with shared those same values, the love of the land, the importance of the land, the resources. They care about them. And it’s just somewhat gratifying to know that there are people that have that sense of caring and connection with the land.



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Still, Rasure argued, the Forest Service has a duty to “provide a quality [recreational] experience to the public,” and even though many Indians felt that snowmaking would be unnatural, in the end snow-­making seemed like a “normal activity.” Allowing the expansion was “responsible” and “equitable” because it balanced the “needs” of the resort with the “interests” of the tribes (1669– 1670, 1675, 1679, 1684). Even Judge Rosenblatt felt compelled to put his sympathy on display. At the trial’s conclusion, he noted his deep roots in the area and signaled his profound respect for its Native peoples, many of whom he counted as friends. A judge from another place might do a better job, he said. “The only difference is that when this Court has to make its final Findings and Conclusions, that it will be thinking of blue-­green water, of visits to the Snowbowl, of visits to chapter houses and adventures on the White Mountain Apache Indian Reservation, of hikes to the Mount Humphrey and Mount Agassiz, a whole host of emotions will go through this Court’s mind in arriving at a final decision” (2026). Is it a stretch to read these words as expressing a kind of paternalism, with the state playing the role of the empathetic but firm father, making tough decisions for the public good but valuing the feelings of its Indian wards? Whether Rasure and Rosenblatt actually meant them this way is beside the point. That many of the Indian defendants heard them this way seems likely. DISSENSUS AND DEFEAT

In January of 2006, Rosenblatt issued his decision. Hewing closely to Lyng, he wrote that the plaintiffs had “failed to pre­sent any objective evidence that their exercise of religion will be impacted by the Snowbowl upgrades” because they had not “identified any plants, springs or natural resources within the SUP area that would be affected by the Snowbowl upgrades” or identified “shrines or religious ceremonies that would be impacted by the Snowbowl decision.”71 Their grievance was purely subjective, and “allowing such a subjective definition of substantial burden would open the door to the imposition of ‘religious servitudes’ over large portions of federal land” (904). The Hopi, for example, had only presented evidence that the snowmaking would affect them “emotionally,” this last word placed in careful quotation marks (895). In an opinion notable for its detailed geographic empiricism, Rosenblatt stressed that the Forest Service and Snowbowl operators had guaranteed full access to Indian religious practitioners, that no one would be excluded from using

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the Peaks. He carefully enumerated the various ways in which the plaintiffs believed the expansion project would harm their religions, their cultures, and the natural world. On almost every point, however, the defense won the day. Even their appeal to the supernatural status quo made it into the decision: Although the Hopi Plaintiffs’ testified about the important role that the Kachinas and Kachina songs play in Hopi religion, they presented no evidence that the Snowbowl upgrades would impact any exercise of religion related to the Kachinas or the Kachina songs. The Kachinas have continued to come to the Hopi villages since the establishment of the Snowbowl ski area in the late 1930s, and since the Forest Service approved the expansion of the Snowbowl in 1979.

Here, the concept of “evidence” is pushed to its logical breaking point. For both scientific and theological reasons, the Hopi were wrong. Thirty years ago, the Hopi said the kachinas would stop coming if the Snowbowl expanded; the Snowbowl expanded, and the kachinas kept coming; hence, they must not understand their own beliefs. They were like millennialist Christians who predict the end of the world and then need to go back and rerun their numbers when the fated day passes. But the story did not end there. Proving that the law does not speak with a single voice, a three-­judge panel of the Ninth District Court of Appeals reversed Rosenblatt’s decision and issued a passionate defense of Native religious freedom. In the court’s opinion, Judge William Fletcher (a former clerk for Brennan) made an exhaustive and fact-­intensive argument that stressed the Peaks’ place in ordinary ritual practice. Pointedly preferring to call the water “undiluted treated sewage effluent” over the “euphemistic” “reclaimed water,” Fletcher argued that for the plaintiffs, “the contamination is not literal in the sense that a scientist would use the term. Rather, the contamination represents the poisoning of a living being” (1040). To get this point across, he put a new twist on Christian comparativism: “To get some sense of equivalence, it may be useful to imagine the effect on Christian beliefs and practices—and the imposition that Christians would experience—if the government were to require that baptisms be carried out with ‘reclaimed water.’” In many ways, Fletcher’s opinion vindicated decades of frustrated Native activism. “The Court in Lyng denied the Free Exercise claim in part because it



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could not see a stopping place,” he argued. “We uphold the RFRA claim in this case in part because otherwise we cannot see a starting place. If Appellants do not have a valid claim in this case, we are unable to see how any Native American plaintiff can ever have a successful RFRA claim based on beliefs and practices tied to land that they hold sacred” (1048). But the vindication was short-­lived. In an unusual move, the Ninth Circuit agreed to review the case en banc (with the entire bench as opposed to a smaller panel of judges). In reversing Fletcher’s opinion and handing a decisive victory to the Forest Service, the court seized the opportunity to clarify the meaning of “substantial burden,” presumably once and for all. Written by Judge Carlos Bea, a George W. Bush appointee, the opening lines of the court’s opinion are a rhetorical tour de force: In this case, American Indians ask us to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities.72

Unlike previous judges who carefully marked the differences between tribes, Bea begins by hailing the plaintiffs as “American Indians”—not “a group of American Indians” or “Indians from four different tribes,” but “American Indians” with “a religion” (not “religions”) that lays claim to a “public mountain.” A vivid and seemingly objective statistic, a number almost too small to imagine, is then contrasted with a subjective claim of grand proportions, that an “entire mountain” would be desecrated by recycled water. But it is the final concepts that carry the burden of the paragraph: “deprecation” and “injured religious sensibilities,” which imply hypersensitivity, resentment, and even hysteria. But this was not enough. The specific nature of their grievance needed to be carefully defined, as well as its political consequences. Since nothing of value to the Indians would be “physically affected” by the expansion project, No plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified. . . . Thus, the sole effect of the

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artificial snow is on the Plaintiffs’ subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden.” . . . Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further, giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone. “We are a cosmopolitan nation made up of people of almost every conceivable religious preference.” Our nation recognizes and protects the expression of a great range of religious beliefs. Nevertheless, respecting religious credos is one thing; requiring the government to change its conduct to avoid any perceived slight to them is quite another. No matter how much we might wish the government to conform its conduct to our religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government—let alone a government that presides over a nation with as many religions as the United States of America—could function were it required to do so.73

Many of the stereotypes associated with the spiritual gaze appear here, which should come as no surprise. In many ways, Bea was simply following a rote model of legal reasoning about religious freedom and sacred lands. What was surprising, however, was Bea’s emphasis on the category of experience. Experience, he clearly intimated, belonged to the private realm of the individual, to the realm of “sensibilities,” “feelings,” “tastes,” and “desires,” not to the public realm of deliberative rationality. Experience lay outside the law. It was a conclusion that any secular liberal could support.74 In a bitter dissent to the majority opinion, however, Fletcher directed his strongest criticism at precisely this notion of experience. Invoking America’s best-­known authority on the subject, he argued that Bea had made a simple category mistake:



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Religious belief concerns the human spirit and religious faith, not physical harm and scientific fact. Religious exercise sometimes involves physical things, but the physical or scientific character of these things is secondary to their spiritual and religious meaning. The centerpiece of religious belief and exercise is the “subjective” and the “spiritual.” As William James wrote, religion may be defined as “the feelings, acts, and experiences of individual men [and women] in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine.”75

As a result of this basic misunderstanding, he wrote, the Peaks “will from this time forward be desecrated and spiritually impure.” If this is not an infringement of religious freedom, he reasoned, then for Native Americans, nothing is. The majority, he concluded, “has effectively read American Indians out of RFRA.”76 Somewhat amazingly, Bea agreed, at least in part. Subjective experience is essential to religion, he argued in response to Fletcher. But from a legal standpoint, he said, “the sole question is whether a government action that affects only subjective spiritual fulfillment ‘substantially burdens’ the exercise of religion. For all of the rich complexity that describes the profound integration of man and mountain into one, the burden of the recycled wastewater can only be expressed by the Plaintiffs as damaged spiritual feelings.”77 With this final contraction of their case to an antitherapeutic throwaway— “damaged spiritual feelings”—the tribes lost. The Supreme Court refused to hear their case in 2009, and other courts quickly picked up on Bea’s opinion as an authoritative statement of the law on sacred lands, as well as other forms of religious practice.78 It would not be long, however, before the claimants regrouped and sued the Snowbowl again, although not without legal difficulty. This time, however, their case was almost exclusively environmental. They argued that the artificial snow may contain trace amounts of endocrine disrupters, pharmaceuticals, antibiotics, and heavy metals, and that the Snowbowl was playing fast and loose with public health. Religious freedom largely disappeared, at least from the courtroom. Chemical pollution, not its spiritual counterpart, was now the main concern.

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CONCLUSION: LANDSCAPES OF SPIRITUAL LABOR

In his influential writings on law and Native American religion, Vine Deloria Jr. (Standing Rock Sioux) blamed the state’s refusal to protect Indian sacred lands squarely on secularism. By secularism he meant a godless but still deeply Christian worldview, deeply Christian in large part because it rejected land and place as meaningful religious categories. Echoing many critics of Christian anti-­ environmentalism from the 1960s, Deloria famously argued that Christianity is a “religion of time” that simply cannot come to terms with Native American “religions of space.” Because of this antigeographical ideology, Deloria argued, Christians believe that “the earth simply does not matter, that human affairs alone are important.”79 Through law, he argued, secularism works on behalf of this Christian ideology to justify and protect only those forms of religion that acknowledge the primacy of the human.80 For Indians, meanwhile, belief in the sacredness of specific places remains neither optional nor subject to debate. “Indians who have never visited certain sacred sites nevertheless know of these places from the general community knowledge and they feel them to be an essential part of their being.”81 “History versus Geography” was a powerful hermeneutic in 1972, and it continues to shape the way many scholars and activists think about sacred lands. But many have also grown uncomfortable with its Manichean essentialism. For one thing, it caricatures Christianity. As several decades of research on so-­called lived religion has clearly shown, Christianity is anything but “placeless,” nor does it always teach that “earth simply does not matter.”82 Consider the Evangelical agrarianism of Wendell Berry, whom Bill McKibben, himself a Methodist Sunday school teacher, has called America’s foremost environmental philosopher. Their faith in the sacredness of earth is hardly heretical. In many ways it is law, not religion, that continues to reinforce the notion that land-­based traditions are fundamentally irreconcilable with “mainstream” Christianity. No one should deny the distinctiveness of Indian sacred geographies.83 But one has to ask: within what discourse are these distinctions articulated? Indian activists who allege that Christianity is a “placeless” religion are not necessarily speaking from an “authentically Indian” subject position. Nor are Christian judges who dismiss place-­based religion speaking on behalf of Christianity. They are both playing a secular language game, questioning religion “from the outside,” as it were. In this respect, Native religion and Christianity have become symbolic stand-­ins for a much broader moral and epistemological conflict between



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ways of seeing nature and valuing place. The social drama of sacred lands is not just about Indians, but about the very idea of sacred landscape in a secular age. Of course, it is Indians who must live with the costs of this particular struggle. That these costs have been so high should raise serious questions about the role of “sacred place” in the broader scheme of environmental politics. I refer here not just to the endless, often exasperating debates over whether Native people can be said to live “in harmony with nature,” but also to the broader assumption, deeply rooted in Enlightenment secularity, that indigenous people belong to the world of emotion, spirituality, and intuition, one that is incommensurable with the secular world of reason, power, and logic—an assumption that the Navajo Nation trial brought into high relief. Not only does this kind of thinking obscure the many ways in which the formula can easily be reversed, but it also lets secular law off the hook. It allows courts to simply throw up their hands and say, “We respect your beliefs, but they are beyond our comprehension. We cannot enter the world of ‘spiritual feelings.’” It thereby reinforces exclusively secular claims to epistemological authority. What would a more just and responsible view of sacred landscape look like? Much like the White Mountain Apache witness Vincent Randall, some suggest that the ethnocentric language of “the sacred” is the problem. As the anthropologist Keith Basso argues in his influential ethnography of Western Apache geographies, Wisdom Sits in Places, generalizations about the sacredness of American Indian lands may be true at “some vague and general level,” but they hide more than they reveal. Basso notes that the Western Apache have three words that could be said to mark kinds of “sacredness,” that they have at least three words that can be translated (imprecisely) as meaning “spiritual” or “holy,” and that “no Apache word comes even close to our own understanding of ‘nature.’” Consequently, he suggests that we should avoid the “contemporary slogans and simplistic clichés” surrounding these terms, or at least “to qualify them in careful, informed, and fully local ways.”84 In a similar vein, Peter Nabokov argues that “sweeping claims about the hallowed nature of Indian environments demand localized refinement lest defining distinctions between tribal traditions get submerged beneath romantic or eco-­pious clichés about Indians and nature.” As I discuss in the next chapter, it is no accident that many American Indians see the informal appropriation of their traditions by “place-­based” spiritual practitioners and New Age environmentalists as equally disrespectful and dangerous. Reverence and contempt are sometimes two sides of the same coin,

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a fact that indigenous people everywhere know all too well. Enshrined in law (think of Bea’s “profound integration of man and mountain into one”) these “eco-­pious clichés” can be deeply disempowering. True, “sacred” is the slipperiest of terms. But “landscape” is no less problematic, at least not when the two words are conjoined. Consider that cases like Navajo Nation trade so heavily in the idea of “religious experience,” which, since the late nineteenth century, has been closely aligned with radical interiority, the ineffable, profound individual emotion, and an unmediated, I/Thou encounter with the Holy. This is the familiar idiom of Romantic, post-­protestant environmentalism and its solitary (white, male) wilderness-­worshipper. Never mind that its originators actually saw nature in much more complicated, politically liberating ways.85 The story of the spiritual gaze has taken on a life of its own. It is almost as if we cannot imagine mountains any other way, and not just mountains but all natural landscapes that are coded as sacred.86 Although William James was conscripted into the story by a sympathetic judge, in many ways the elephant in the room was really John Muir. One need only read what the Navajo, Hopi, and other Indian plaintiffs said about the San Francisco Peaks to understand how distorting this spiritual lens can be. In their testimony, they hardly ever spoke of gazing at the Peaks, or indeed of seeing them at all. They did not speak of feeling “at one” with the mountain, or of the mountain making them feel at one with the whole of Creation. They did not speak of “the feelings, acts, and experiences of individual men [and women] in their solitude.” They did not use the language of religious experience or aesthetic appreciation. Rather, they used the language of dwelling— of work, community, and ritual practice. Obeying the kachinas and following their teaching was hard work, the hard work of shared tradition and communal lifeways. It was inseparable from the hard work of planting and harvesting corn, of performing difficult rituals, of raising a family. Gathering the soil and herbs for medicine bundles was hard work, the hard work of keeping people healthy and holding onto traditional knowledge. Skiing, on the other hand, was play, pure and simple. Although some people earned a living from it, and some even believed it brought them closer to what Babbitt called “the direct manifestation of divinity,” ultimately their way of life did not depend on it. But in the eyes of the law, was there any difference?

5 Sanctity, If You Will

The universe is no more a temple than it is a brothel or a library. The cosmos knows no God—it is super deum. —john

burroughs

Like religion, wilderness is a touchy subject. Because of religion, wilderness is a touchy subject. Of all the ideas associated with American environmentalism, it is the most heavily shrouded in the rhetoric of religious experience.1 Wilderness is the place of divine revelation, of spiritual communion, of personal devotion, of moral purity. It is where humanity is humbled by the sublime mystery of creation. In postfrontier America, this is simply common cultural knowledge. Yet it has never been a comfortable kind of knowledge. This is especially true in the stubbornly secular world of American environmentalism, where too much God-­talk can get you in trouble. Many environmental leaders have been cut from prophetic cloth—John Muir, David Brower, Bill McKibben—and many of these leaders have been inspired by religious faith, however latent or liberalized.2 Yet when it comes to wilderness, their fervor has often been divisive. Consider the term of religious opprobrium most often cast at wilderness devo117

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tees since the 1960s: cult. By popular definition, a cult is “bad religion”: coercive, irrational, antisocial. The “cult of wilderness” is no different. While a “spiritual connection” with nature is practically required of good environmentalists—think of Aldo Leopold’s encounter with the “fierce green fire” in the eyes of a dying wolf, or of Rachel Carson’s mystical reverence for the sea—this connection is not allowed to exceed the bounds of religious reasonableness.3 Above all, it is not allowed to look like “animism,” the mistaken attribution of spirit or soul (anima) to inanimate objects.4 As the archetypal home of the nonhuman Other, of beings against whom we define our intrinsic humanity, wilderness is the land of strange gods. To worship these gods is not only to reject secular rationality. It is to betray one’s own species. Or so one common way of thinking goes. For many conservative Christians, this betrayal is straightforward. In the words of Senator James Inhofe, a vociferously anti-­environmental evangelical, environmentalists “quit worshipping God and start worshipping the creation— the creeping things, the four-­legged beasts, the birds and all that. That’s their god. That’s what they worship.”5 Case closed, theologically speaking. For many secularists and religious liberals, however, the problem is more complicated. Coming to terms with wilderness means “finding a balance” between science and spirituality. Secular environmentalists cannot accept animistic excess, nor can they dismiss the spiritual values of solitude or self-­renewal. They must find a way to honor sacred space while leaving “the sacred” open to interpretation. Amid growing acceptance that we have entered a new age of planetary domestication, the so-­called anthropocene, this is a balancing act many are refusing to undertake. According to a diverse coalition of “eco-­modernists,” libertarians, postmodern intellectuals, utilitarian planners, and even now some conservation biologists, the wilderness idea has been irredeemably tainted by naïve religiosity.6 Like the very theology that abhors its adoration, wilderness belongs to an unenlightened, presecular past. Or so another increasingly popular way of thinking goes. Yet the wilderness idea refuses to disappear, in part because it provides such fertile ground for thinking through (and against) the concept of the sacred. In the politics of nature, wilderness is the quintessential site of secular ambivalence. Thus the title of this chapter, which comes from a seminal essay on the philosophical foundations of environmental law, Laurence Tribe’s “Ways Not to Think about Plastic Trees,” published in 1974. There, Tribe made a passionate



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appeal for acknowledging the intrinsic value of nonhuman entities, especially wild landscapes, by assigning them rights and standing. But he stopped short of calling those entities sacred, because this would have implied that the natural order—and humanity’s place in that order—was static and divinely ordained. It would have been a reactionary invocation of religious authority. Instead, by giving legal rights to nature, Tribe argued, we would show that we are “capable of perceiving intrinsic significance—sanctity, if you will—in the very principles, however variable, according to which we orchestrate our relationships with one another and with the physical world of which we are a part.”7 For Tribe, the sacred resided not in things themselves but in the processes whereby we recognize things as intrinsically valuable. It is why, he said, we intuitively grasp the vast moral difference between kicking a dog and merely tripping over it. This perception of sanctity in principles can be wholly secular, Tribe claimed, and it can appear in many different forms. Note, however, that it was not quite sanctity Tribe was endorsing, but sanctity “if you will.” These three words pre­sent us with a conundrum. On the one hand, we can read them as a tolerant affirmation of ethical pluralism: If you want to use religious language to describe our obligations to nature, go right ahead. On the other, we can read them as a diffident or even distrustful nod to that language, a signal to his audience that sanctity is, perhaps, not the best word for something that traditional religion has done a pretty bad job of protecting, especially traditional Christianity. Both readings may be partially correct. The point is that we are left to wonder just where “sanctity” fits into Tribe’s environmental ethic. Is it essential, or is it an afterthought? Such questions have arisen again and again in debates about wilderness. To hear them, however, we must prick our ears for such quietly revealing moments of diffidence and distrust. In this chapter, I listen for such moments in legal writing on the supremely contentious concept of standing. Based on the Constitution’s limiting of federal judicial power to “cases” and “controversies,” modern standing doctrine “requires that parties bringing claims in federal court show a concrete injury-­ in-­fact that is caused by the illegality complained of and able to be redressed by judicial action—in short, injury, causation, and redressability.”8 Although it has important procedural functions and helps maintain the separation of powers among branches of the government (in theory, at least) standing has also been a key site of symbolic struggle between pro- and anti-­environmental jurists. The reason is simple: environmentalists believe in ecological interdependence

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or “ecocentrism,” which dictates that environmental injuries can be diffuse, depersonalized, and caused by complex interactions across time and space. When a factory dumps PCBs into a river, for example, we cannot point to a single person whose cancer was clearly caused by those chemicals. The harm is systemic. Yet environmental skeptics have used the concept of standing to undermine this ecological way of thinking by severely constraining what counts as a legally cognizable injury. Moreover, they have used it—and quite effectively, too—to depict ecocentrism as irrational, esoteric, and illiberal. Thus, as environmental law expert Jonathan Z. Cannon writes, “the battle for a more or less individualistic notion of standing is a symbolic battle for the heart of the nation over environmental beliefs and values.”9 In clashes over wilderness, this battle takes place on the terrain of visual culture. By framing environmental degradation as a form of “aesthetic injury,” the law of standing has supplied a discourse of cultural belonging, one that is used to express (and enforce) ideas about how right-­thinking, reasonable people should see and feel about the natural world. Because it raises visual questions about how that world ought to look, it can also be a powerful vehicle for expressing (and enforcing) ideas about landscape.10 Standing is, or can be, a way of seeing. Environmental law has always had a fraught relationship with landscape. Despite its close reliance on science, it has always been vulnerable to the charge that its interest in landscape is “merely aesthetic” or, worse, “merely spiritual.” Especially when it comes to wilderness preservation, critics have long dismissed environmental litigation as a pretext for sanctifying pristine places, a technocratic excuse for re-­creating Eden by force. Behind this charge lies a much more troublesome assumption: that environmentalism is nothing more than fundamentalism in disguise, and wilderness is its temple. This assumption haunts American environmental politics, even when it is assiduously avoided. In fact, its avoidance may be more interesting and important than the assumption itself. Why can’t modern environmentalists simply confess that wilderness is sacred space, as so many of their forebears proudly affirmed? The answer, I believe, lies not in their disdain for religion, but in their precarious position in American civil society. To understand this position, it helps to view the problem from the standpoint of cultural sociology.11 From this standpoint, to defend wild landscapes is to perform a particular civic ethos, an integrated set of environmental virtues. First among these virtues is respect



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for the autonomy of nonhuman others. Wilderness, in this sense, is not an aesthetic good but an exemplary place of moral encounter, a theater for the performance of egalitarian, ecocentric humility against utilitarian self-­interest. It is where civil society affirms the universal value of “self-­willed land,” a concept that seamlessly fuses individual liberty with ecological solidarity.12 For many secularists, to call wilderness a “temple” would be to place this theater at the center of the Western religious imagination. It would be to rehearse an all-­too-­ human, all-­too-­Christian drama of sin and redemption. Ecotheologians and environmental ethicists wrestle with such questions for a living. Although we should expect lawyers to be more down-­to-­earth, their silence on the sacred is nonetheless puzzling. After all, when Tribe was writing in the early 1970s, legal thinkers participated in the high-­minded discussions of religious ideology that characterized even popular environmental debate at the time. Would accepting an “ecological worldview” require rejecting Judeo-­ Christian teachings about human mastery of the natural world? Would it require adopting a new “religion of ecology”? Lawyers engaged with such questions, as did many educated Americans. Over the next two decades, however, they came to avoid them. Environmental law became thoroughly secularized alongside—and perhaps in response to—the religious polarization of environmental politics. The more “un-­Christian” it became to care about nature, the more environmentalists sought to sweep their “spiritual values” under the rug. Only in recent years, with the quiet rise of overtly religious environmentalism, have opportunities for a secular-­religious rapprochement seemed possible. To make sense of this story, I look back to a landmark Supreme Court case from 1972, Sierra Club v. Morton, which arose at a moment of intense conflict and intellectual ferment in American environmental politics, and which helped ignite an important debate over standing for nature (including Tribe’s essay, which I examine later). The participants in this debate were not just open to discussing the role of religion and spirituality in environmental regulation; they were also deeply concerned with the role of civil religion, although they did not give it that name. The idea of law as embodying a constitutional covenant, and the need to write nature into that covenant, was clearly at the front of their minds. What was not, however, were the dangers of political idolatry, or what I call “imperial wilderness.” To grasp the tension between these two concepts, and to see how it has shaped secular ways of seeing, it will be helpful to revisit a more recent controversy over the wilderness idea.

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THE DISENCHANTED WILD

In the mid-­1990s, wilderness came under fierce attack by the academic Left. The loudest shot was fired by the environmental historian William Cronon in his now-­canonical 1995 essay, “The Trouble with Wilderness.”13 Redirecting a stream of postcolonial criticism that had been flowing for several years,14 Cronon argued that wilderness represented a dangerous, ahistorical obsession with sublime purity, one that blinded us to the concept’s origins in nineteenth-­ century frontier ideology. Remembered largely for its laying bare of the many social injustices that underwrote this ideology, Cronon’s essay (and his response to the furor that followed) can also be read as a religious polemic, indeed, as a quintessential piece of secular critique. By attacking the cult of wilderness, it drew a bright moral line between “true” wilderness religion—inward-­looking, this-­worldly, tolerant—from its “false” counterpart—public, puritanical, imperialistic. As the historian Aaron Sachs tellingly remarks, Cronon’s remarkably influential essay “pushed us away from sacred enclaves of supposedly pristine land . . . and pointed us back toward home.”15 By pointing us home, however, it had much more to say about the sacred than its readers tend to recognize. Cronon’s essay was, at heart, an attack on idolatry. When we “fetishize sublime places” and treat wilderness as “a sacred American icon”—that is, “a landscape where the supernatural lay just beneath the surface”—we unwittingly validate a long history of dispossession, conquest, and national self-­ aggrandizement, he argued.16 Echoing Marx on the “mystical character” of the commodity, he wrote that wilderness “hides its unnaturalness behind a mask that is all the more beguiling because it seems so natural.”17 It is a mirror of “our own unexamined longings and desires.” Though secular on the surface, these longings and desires are religious at root. For environmentalists, Cronon argues, the “old romantic project of secularizing Judeo-­Christian values” is alive and well, the last redoubt of an unreflective and universalizing spirituality. “Thus it is that wilderness serves as the unexamined foundation on which so many of the quasi-­religious values of modern environmentalism rest.”18 This “quasi-­religious,” “fetishistic” faith leads environmentalists into moral peril of many kinds: cultural imperialism, blindness to environmental injustice and, worst of all, contempt for the humble, humanized landscapes where we actually live. Cronon did not dismiss this faith out of hand. On the contrary, Cronon assures his reader early in the essay, “I celebrate with others who love wilderness



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the beauty and power of the things it contains.” In a companionable gesture, he abruptly shifts to the second person. “Remember this? The torrents of mist shoot out from the base of a great waterfall in the depths of a Sierra canyon, the tiny droplets cooling your face as you listen to the roar of the water and gaze up toward the sky through a rainbow that hovers just out of reach.” And remember this? A desert canyon on a silent evening, and a trailside encounter with a fox (“or maybe for you it was a raccoon or a coyote or a deer”) who stops “to gaze in your direction with cautious indifference before continuing on its way.” “Remember the feelings of such moments,” Cronon concludes, “and you will know as well as I do that you were in the presence of something irreducibly nonhuman, something profoundly Other than yourself. Wilderness is made of that too.” At the end of the essay, Cronon returns to this theme, arguing that the value of wilderness lies in its capacity to produce wonder at, and thus respect for, the “autonomy and otherness of the things and creatures around us.”19 These passages do more than just validate Cronon’s green credentials. They also carve out a pure space of authentic religious experience. By invoking the “irreducibly nonhuman,” the “profoundly Other than yourself,” he is clearly bringing the sacred into play. These are classic hierophanies as Mircea Eliade defined them, numinous irruptions of the real.20 Cronon is testifying: I, too, have encountered the Holy in wilderness. Why, then, is this not “fetishizing the sublime”? The key lies in the line, “Wilderness is made of that too.” His “that too” gestures to a form of experience too profound and too deeply private to probe any further. As Wittgenstein famously wrote, “Whereof one cannot speak, thereof one must be silent.” Except Cronon is not quite silent. This glimpse into the sacred performs an important rhetorical function. It demonstrates the value of silence, as well as the value of truly biocentric humility, of an I/Thou relation with nature. It is when this deeply personal experience of the sacred gets corrupted by dangerous forms of social and political solidarity that “the trouble with wilderness” begins. Cronon’s argument is not with authentic, private wilderness religion. It is with wilderness as political theology. Many old-­guard environmentalists missed the distinction. They were incensed by the essay, accusing Cronon of giving philosophical ammunition to environmental skeptics and of betraying a cause that had driven environmental reform for decades. Heard as a battle cry for “post-­modern” environmentalism, it ignited a furor in the environmental community that continues to this day. Some even tried to turn the religious tables on Cronon. In an issue of the

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Earth First! journal Wild Earth devoted to rebutting Cronon, Dave Foreman— founder of the radical environmental group and a figure frequently likened to both an apocalyptic cult leader and fundamentalist preacher—argued that wilderness foes of all ideological stripes, from mining company executives to liberal history professors, were driven by the Puritan mission to civilize “land beyond human control.”21 The Buddhist eco-­poet Gary Snyder followed the same line of attack, claiming that Cronon and his allies had simply extended the old Judeo-­Christian project of defining nature as a “spiritually (politically) fallen realm.” Although “deconstructionism” could be a beneficial project in Buddhist terms, Snyder wrote, it had devolved into “the high end of the ‘wise use’ movement,” thus forming an “unholy alliance of Capitalist Materialists and Marxist Idealists.” What Cronon failed to see, he claimed, was that wilderness was not about preserving land for “recreation or spirituality even, but to preserve home-­space for non-­human beings.”22 In other words, it was Cronon who was laboring under a religious delusion, not wilderness defenders. Holding this line a decade later, Foreman mocked “postmodern deconstructionist scholars” for divining their distorted notion of wilderness “as they hold hands in a darkened room around a séance table, trying to hear voices from the misty shades of Jonathan Edwards and Henry David Thoreau.”23 Everyone, it seems, was religious in the wrong way. For Cronon’s defenders, this furor seemed only to prove his point. The historian Thomas Dunlap acidly wrote, “Wilderness is the modern environmental religion, and the only reason its more enthusiastic advocates have not deified it is that they are too secular to know how to do the job.”24 Inspired by the fracas to write an entire history of environmentalism as a religious movement, Dunlap later wrote that Cronon’s critics “seemed like Christian fundamentalists listening to an historical-­critical talk on the Bible.”25 Perhaps feeling that he had pushed his iconoclastic critique too far, Cronon, meanwhile, tried to find common ground in an ecumenical vision of sacred nature. In a thoughtful reply to critics that dwelled on the religious aspects of the controversy, he explained that history is “for the most part a secularizing activity, in which even sacred timeless truths are analyzed within the flow of profane time.” The risk is “forgetting the essential mystery that hides beneath” this flow. “When people say that they have encountered something sacred in the world, the truth of their vision is not to be denied simply by pointing to the historical context that has shaped it,” he continued:



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The sacred, after all, is the place where we imagine that phenomena from another, more eternal world enter and rupture the flow of time in our own. Historians can document and situate such ruptures, but in some ultimate sense we cannot explain them, at least if we wish to show our respect for people who believe that their own experience transcends the secular world. . . . Had I been writing about Judaism or Christianity or Islam or Buddhism, or about the spiritual universes of native peoples in North America and elsewhere, I would almost certainly have been more careful to show my respect before entering the temple to investigate and comment on its architecture and origins. The reason I did not do so in this case is that the religion I was critiquing is my own. . . . Perhaps I was tempted in this by the prophetic rhetorical traditions of Christianity and Judaism—for these are of course the foundations on which romanticism erected its new religion of nature—in which the faithful are exhorted to return to the true path, to abandon false idols and worship the true God after having flirted with Satan in the desert.26

Although Cronon’s apology demonstrated sensitivity to the feelings of his critics, not to mention a high degree of cultural self-­awareness, it only amplified the claim that seemed to anger them most: that their feelings were religious. Though much less dismissive of Romantic nature religion than other prominent historians, he refused to back down. Several years later, in a foreword to Dunlap’s book, Cronon claimed that treating environmentalism as a religion is “more an act of praise than of criticism.”27 For the resolutely secular, it seemed like faint praise indeed. HOLY WARS

In many respects, the controversy over Cronon’s essay said more about the broader intersection of religious and environmental politics in the 1990s than it did about wilderness, which was being rapidly overshadowed by issues such as climate change. Over the previous decade, environmentalists had been increasingly branded as religious fanatics by conservative ideologues on both the Christian and libertarian Right. According to the former, they were part of a neopagan conspiracy to destroy the church and the American way of life. According to the latter, they were simply Puritan do-­gooders in disguise. As novelist Michael Crichton famously told San Francisco’s Commonwealth Club in

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2003, repackaging tropes that had been in wide circulation for years, environmentalism is “the religion of choice for urban atheists” and “a perfect 21st century remapping of traditional Judeo-­Christian beliefs and myths.” The basis of this irrational and destructive faith was the myth of Edenic return—that is to say, the myth of wilderness.28 Unlike Crichton, many Wise Use activists in the ’80s and ’90s followed the Christian Right by rigorously separating environmentalism from the “Judeo-­ Christian tradition.”29 Seen through the eyes of Christian millennialists, environmentalism was a dark, apocalyptic force. These strands of anti-­environmental thought came together most vividly in environmentalists’ very own antichrist, Secretary of Interior James Watt, an outspoken Christian Dispensationalist and Wise Use pioneer who famously told Congress, “I do not know how many future generations we can count on before the Lord returns.” For liberals Watt came to symbolize the increasingly virulent anti-­environmentalism of the Christian Right, which many environmentalists mistakenly took to be a natural outgrowth of Christianity itself. By the early 1990s “traditional” monotheism and environmentalism seemed fundamentally incompatible to many Americans, secular and religious alike.30 This division had been brewing for quite some time. In 1963, for example, the president of Monsanto famously called Rachel Carson “a fanatic defender of the cult of the balance of nature.” As more and more Americans gravitated toward new religious movements and alternative spiritualities during the 1960s, such charges grew increasingly shrill, linking environmentalism to a wide range of evil ideologies, from eugenics to communism. In Defense of People, a diatribe published in 1971 by the profoundly influential Christian social critic Richard John Neuhaus, argued that “the defense of sequoias and the sterilization of the socially undesirable are united in common cause.” Writing then as a Lutheran leftist (not the Catholic conservative he later became), Neuhaus was especially worried about arguments for nature’s rights, which he warned could lead to “an unspeakable cultural regression from the worldview produced by biblical monotheism.” Long before Jerry Falwell, Pat Robertson, and Tim LaHaye cast environmentalism as a New Age conspiracy, Neuhaus linked ecology to bloodthirsty paganism. Their “primitive prayers to stones and streams” grew directly from their fear of overpopulation by the world’s undesirables. In these animistic prayers one could see that the “abhorrent spectacle of human sacrifice to appease the gods of nature is not as far removed from some ecological arguments as one may wish to think.” From support for abortion to flirtation with fascism,



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obsession with nature’s rights inevitably led to the desecration of humanity, especially the poor and powerless. By “relocating the sacred” from the human soul to uncorrupted nature, Western environmentalists had found ideological justification for their privileged position in the world. Worse, they had discovered a neat cure for “the cancerous growth of inconvenient people.”31 Riding a wave of conservative environmental skepticism, such claims entered the evangelical mainstream in the ’80s and ’90s.32 At the same time, the environmental movement was itself fracturing along religious lines. The growth and institutionalization of the various movements labeled “New Age” and the rise of Deep Ecology had alienated secular Leftists, who saw goddess worship and neopaganism as so much “Eco-­la-­la,” to use the radical social ecologist Murray Bookchin’s supremely derisive label. In 1987 Bookchin brought these tensions to the breaking point at a conference in Amherst, Massachusetts, where he excoriated Deep Ecology as an “ideological toxic dump” that had recently emerged “from the Sunbelt’s bizarre mix of Hollywood and Disneyland, spiced with homilies from Taoism, Buddhism, spiritualism, reborn Christianity, and in some cases eco-­fascism.” Linking it to the “crude eco-­brutalism” of the Nazis and Malthusian sociobiology, Bookchin cast Deep Ecology’s fascination with wilderness as nothing less than an embrace of aestheticized religious violence. What we must do today is return to nature, conceived in all its fecundity, richness of potentialities, and subjectivity—not to supernature with its shamans, priests, priestesses, and fanciful deities that are merely anthropomorphic extensions and distortions of the human as all-­embracing divinities. And what we must enchant is not only an abstract nature that often reflects our own systems of power, hierarchy, and domination, but rather human beings, the human mind, and the human spirit that has taken such a beating these days from every source, particularly deep ecology.33

In response, the radical environmental writer Ed Abbey offered to beat Bookchin over the head with a shovel.34 Much more could be said about the religious politics of environmentalism in the early 1990s. What I want to note here is simply that the uproar over Cronon’s essay was fueled by intense anxieties over the religious implications of environmentalism as force in American civil society. What none of Cronon’s critics seemed to notice was his overriding concern with the public dimension

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of wilderness worship, especially with its occasionally uncanny resemblance to the Christian nationalism it denounced. What he had attacked was the notion that wilderness was a place “not just of religious redemption but of national renewal, the quintessential location for experiencing what it meant to be an American.”35 Like Bookchin and the young Neuhaus, Cronon worried about the antidemocratic, elitist thrust of green Americanism, its tendency to demonize the poor, its unreflective masculinism, its neocolonialist contempt for living indigenous peoples. He was not arguing for the desacralization of nature, but for the desacralization of American nature. In theological terms, his model appeared to be the low-­key, Lutheran secularity of Aldo Leopold, suspicious of organized religion but intensely spiritual and committed to a redemptive vision of ecological community. Like the agrarian evangelical Wendell Berry, Cronon was preaching a gospel of rooted immanence, of spiritual investment in the mundane places of everyday life. Above all, he was urging respect for the autonomy and otherness of nonhuman nature in the here and now, not in some mythological and morally purified elsewhere. What Cronon did not consider, however, was how to put real social and political power behind this ecocentric ethic. The writings of figures like Leopold and Berry, transformational as they had been for many environmentalists, were obviously no match against libertarian think-­tanks, megachurch pastors, extractive industries, and their friends in Congress. Despite its obvious faults, the wilderness tradition he criticized had one notable strength: the force of law. A century of mobilizing by wilderness advocates, most of them social elites, some with questionable motives, had nonetheless produced a robust system for harnessing the power of the state. Moreover, this movement had done the heavy symbolic labor of stigmatizing opponents like the logging industry as anticivil and un-­American. In other words, they had worked with the cultural norms of American civil society, not against them, and they had transformed those norms into a form of socially acceptable, state-­sponsored violence. If you cut down a redwood in Yosemite National Park, you would go to jail, and you would be treated by many Americans as something like a traitor. But if you failed to respect the sacredness of the trees in your own backyard, nobody but the neighbors would care.36 Beyond the mundane common-­law tradition of private property rights, how could sacred law—the law of American civil religion—be marshaled to protect the “autonomy and otherness of the things and creatures around us”? As it turns out, legal thinkers had addressed this question two decades



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earlier, before the environment had become a central front in the country’s culture wars. Although they failed to alter the trajectory of environmental law, they laid the groundwork for an influential if dissident style of environmental ethics, one that did not shy away from difficult questions of civil religion. An important catalyst for this debate was one of the most famous—and most peculiar—Supreme Court cases of the early 1970s. THE KING GOES TO COURT

Lawyers remember Sierra Club v. Morton as the first major constitutional test of the modern environmental movement.37 Everyone else remembers it as the case in which Justice Douglas, the Supreme Court’s most outspoken environmentalist, “spoke for the trees.” His iconoclastic dissent, which argued that inanimate objects should have standing, has become a minor classic of environmental literature, anthologized, celebrated, and (at the time) hotly debated. As legal precedent, it made little impact. But as a cultural performance it resonates to this day. To understand this resonance, we must understand the controversy from which it emerged. Like Hetch Hetchy to the north-­north-­west, the Mineral King Valley (fig. 7) is an iconic battleground of American environmental politics: “an Agincourt, a Saratoga, an El Alamein,” in John McPhee’s words.38 And like Hetch Hetchy, it is iconic because, for better or for worse, it came to symbolize a Manichean clash of environmental values. On one side stood the Sierra Club, historic guardian of Muir’s mountains and, in 1969, newly radical force in the fight against eco-­apocalypse. On the other stood the Walt Disney Corporation, which had brainwashed America with mass-­produced, plasticized “nature.” It was Brower versus Bambi, moral purity versus corporate greed. This, at any rate, is how many environmentalists saw things. Their opponents saw a fanatical, uncompromising elite standing in the way of economic progress, all for the sake of saving a marginal slice of empty public land. In reality, the story was much more interesting than either side made it seem. There is no shortage of environmental irony in the history of this 15,000-­ acre valley. Visitors today must climb a narrow, winding road through a gorgeous sequence of Sierra Nevada plant communities: sun-­bleached chaparral, pastoral groves of oak, awesome stands of giant sequoia. Along the way a handful of houses and old hunting camps blend picturesquely into the background. By the time one reaches the end of the twenty-­four-­mile road, blinking up at

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Figure 7. The Mineral King Valley and environs. Photo by Catherine Newman Howe.

the cirque of 10,000–13,000-­foot granite peaks that surround the national park campground, it is hard to imagine how Disney and its supporters could have characterized Mineral King as a washed-­up mining town, no more “wild” than the giant vacationland they hoped to construct. In fact, they were not entirely off the mark. Mineral King was “discovered” in 1873 by a Tulare County farmer, James A. Crabtree, who said he was guided by Indian apparitions (fittingly, given that most of the original inhabitants had been killed or driven out).39 Crabtree discovered silver ore and ignited a rush that lasted a decade. The rush was largely fruitless, however, and the mining boom left the valley in sufficient disrepair to merit exclusion from Sequoia National Park, created in 1890. By the turn of the century, all that was left were gaping holes in the ground, a small ghost town, and many square miles of eminently skiable slopes. Although Muir himself proposed that it become part of Sequoia National Park, in 1926 the Sierra Club agreed to exclude it in exchange for more pristine areas in the Southern Sierra. Beloved by a small number of outdoor adventurers, Mineral King was damaged goods. It remained in this mostly disregarded state for several decades. Then, in 1947, the Sierra Club—Brower himself, in fact—determined that steep, snow-­ rich valley would be the ideal location for a new ski resort. Two years later, the



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club endorsed a Forest Service bid to build a modest, $3 million center with a small hotel. But there was little initial interest because building a new road would be far too expensive to justify such a small resort. Enter Disney. In the early 1960s the company began to study the valley and quietly buy out local property owners. With state and federal agencies lined up to subsidize a greatly expanded access road, the Forest Service announced in 1965 that it had accepted Disney’s bid for a $35-­million resort served by up to twenty-­seven chairlifts. It would be a gargantuan project, the high country equivalent of Disney’s Orange County fantasyland. “The entire valley would be clogged with trams and lifts, ski jumps, sled runs, chalets and snack bars,” wrote Sierra Club historian Tom Turner.40 Two hotels would house as many as 3,000 guests and 1,000 employees, and an underground garage would house 3,600 cars. The resort, in all its industrial vastness, would be designed to look like a quaint Swiss alpine village. By this time, the Sierra Club had already withdrawn its support for building a resort, its leadership having shifted toward a more confrontational, antidevelopment position during the 1950s and early ’60s. But the gears of government approval were already in motion. After a period of political wrangling, Interior Secretary Stewart Udall, who strongly opposed the project, was forced to grant a right-­of-­way to the valley. Once considered too scarred to count as true wilderness, Mineral King was transformed into a paragon of natural purity. When the Sierra Club Legal Defense Fund sued to stop the road in 1969, environmental litigation was in its infancy. It was only four years earlier, in a landmark ruling on Consolidated Edison’s plans to build a power plant on Storm King mountain in the Hudson River Valley, that a federal appeals court had established that aesthetic harm was a so-­called injury-­in-­fact sufficient to establish standing. Remembered as the case that secured citizens’ rights to challenge government action on environmental rather than economic grounds, Scenic Hudson Preservation Conference v. FPC also set an important cultural and political precedent: the preservation of iconic landscapes mattered for the preservation of the world.41 Though immortalized by famous nineteenth-­century writers and artists, the Hudson Highlands were not just beautiful scenery. They were a bulwark against ecological degradation.42 Of course, environmental policymakers had long valued beautiful landscapes. But courts did not begin to regard aesthetic values as worthy of legal protection until the 1950s. In a landmark 1954 case, Berman v. Parker, the Supreme Court ruled that the government could seize “blighted” urban areas

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for redevelopment under the Fifth Amendment’s Takings Clause. In legal dictum, Justice Douglas argued that slums can be “an ugly sore, a blight on the community which robs it of charm,” and that they “suffocate the spirit by reducing the people who live there to the status of cattle.” Seizing the opportunity to assert a broader principle of legal regulation, he wrote, “The concept of the public welfare is broad and inclusive. . . . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-­balanced as well as carefully patrolled.”43 Here, the elitist “dark side” of aesthetic regulation was on full display, its ever-­present potential to impose the tastes of the powerful on communities of the powerless.44 Still, landscape mattered legally. In its case against Interior Secretary Rogers Morton, the Sierra Club had more ambitious goals than preserving a beautiful slice of the Sierra. It aimed to transform the law of standing. In contrast with Scenic Hudson, it chose not to recruit local residents or club members to show that individual claimants would be injured by the Disney resort. Rather, it sought standing as an organizational representative of the public interest or, as many have put it, as a “private attorney general.” It spoke for the Sierra, not just a handful of upset mountaineers. Although a federal district court was initially persuaded by this novel theory of public harm, the Ninth Circuit Court of Appeals overturned its decision, arguing that the club had shown no injury to its members “other than the fact that the actions are personally displeasing or distasteful to them.”45 The basic issue thus presented to the Supreme Court was momentous: on what grounds could environmentalists go to court? In its answer the court made history, although only in passing. Writing for the majority, Justice Potter Stewart rejected the Sierra Club’s abstract claim to standing. Yet he also affirmed that damage to the “aesthetics and ecology” of Mineral King could constitute a cognizable injury to aggrieved members, and in a footnote he essentially invited the club to amend its complaint accordingly. The Court had spoken clearly: “The land had no rights.”46 But individual citizens did have rights to protect the land for aesthetic, recreational, or spiritual reasons. Although the fight over Mineral King dragged on for several years, concluding with the valley’s inclusion in Sequoia National Park in 1978, environmental law had arrived. With standing established—even on narrow, individualistic grounds—the courthouse doors were open.47 Many environmentalists remember it as a bittersweet victory, however. This



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is because the Court did not heed the voice of its prophetic dissenter, “Wild Bill” Douglas. FOR GOD AND (WILD) COUNTRY

By 1972 William O. Douglas had established himself as one of the foremost conservationists in America. A former director of the Sierra Club and author of numerous books on wilderness, Douglas cast himself as the quintessential outdoorsman, more comfortable on horseback than on the bench (although he was reputedly an indifferent rider).48 He was also a died-­in-­the-­wool civil libertarian and longtime presidential aspirant known for judicial activism and polemical, antilegalistic opinions. For Douglas, the Supreme Court was a bully pulpit, and he cared about no issue more fervently than the preservation of wild, public lands. Though this is not the place to delve into his professional or personal life,49 his dissent in Sierra Club v. Morton can only be understood in relation to his voluminous nature writings, which consistently wove the civic and spiritual into a defense of wilderness values. While he may have been an unconventional judge, Douglas was a very conventional conservationist. The son of a Presbyterian minister, he was, moreover, a very conventional protestant conservationist, at least in his mastery of watered-­down Muirean rhetoric. Like Muir, Douglas was fixated on what Donald Worster has called “aesthetic spirituality,” or “the capacity to see beyond instrumental values, to find beauty in the unaltered Creation, and to identify that beauty with goodness and truth.”50 Unlike Muir, however, Douglas also saw wilderness through the lens of postwar civil religion. For Douglas, defending unaltered Creation was also defending America’s constitutional covenant. Wilderness was the home of personal freedom.51 God talk abounds in Douglas’s wilderness writings.52 On the first page of his quasi-­memoir, Of Men and Mountains, he speaks of the Pacific Northwest wilds as somewhere a man can “come to know both himself and God.”53 On the specific personality of this God, however, Douglas almost never elaborates. He would bow in His direction at the proper moment, then keep climbing. In keeping with mainstream Democratic politics at the time, he was very much a “ceremonial deist”—ecumenical, undogmatic, and properly pious. Standing on the summit of Mount Adams in Of Men and Mountains, he recites the first words of Genesis. “One cannot reach the desolate crags that look down on eternal glaciers without deep and strange spiritual experiences,” he writes:

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If he ever was a doubter, he will, I think, come down a believer. He will have faith. He will know there is a Creator, a Supreme Being, a God, a Jehovah. He will know it because otherwise the mind cannot comprehend how life could have been created out of the inert matter. When he sees the stuff that was the beginning of life, he will know that it took an omniscient One to sculpture man; to fashion one who can laugh, and cry, and love; to mold out of rock a soul that can aspire to the stars and a heart that can sacrifice all for an idea or a loved one.54

Published in 1950, this reference to “sacrifice” can only be read as an expression of postwar civic piety. Four years before “one nation under God” was added to the Pledge of Allegiance and “In God we trust” was printed on the currency, Americans were increasingly sure of their divine mission to bring freedom and light to the world. For Douglas, wilderness was part of this project. Of Men and Mountains ends with a sententious appeal to “the faith of our fathers,” a faith “that dedicates us to something bigger and more important than ourselves or our possessions . . . a faith for which it would be a glory to die. Only if we have such a faith are we free to live.”55 This faith was very much in keeping with Douglas’s stance on questions of religious freedom during this period. In a 1952 decision allowing New York to release students from public schools to receive religious education, Douglas issued a famous defense of ceremonial deism, asserting: “We are a religious people whose institutions presuppose a Supreme Being.” Although “fastidious” atheists or agnostics might go so far as to object to the Supreme Court’s own ceremonial invocation of God, Douglas wrote, when government “encourages religious instruction or cooperates with religious authorities” it “respects the religious nature of our people and accommodates the public service to their spiritual needs.” Despite his liberal record, these words bedevil strict separationists to this day. An ardent seeker of what environmental historian Susan Schrepfer called “the masculine sublime,” Douglas depicted wilderness as a therapeutic “testing ground” where spiritually beleaguered Americans could revive themselves and their nation.56 As public awareness of environmental problems such as pollution and overpopulation increased, however, Douglas spoke less of conquest and macho self-­reliance and more of ecological interdependence. At the same time, he grew increasingly strident in his denunciations of corporate greed and industrial blight. In both ways, the trajectory of his thinking closely tracked that



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of the modern environmental movement. In a 1964 article for Ladies’ Home Journal, for example, Douglas decried “the sacking of the woodlands by predatory man” while enthusing about the “spiritual values in the outdoors,” values that “reflect the principle that beauty is an end in itself.” Perhaps appealing to his readers’ “motherly instincts,” he wrote that boys and girls should “have the opportunity to grow up in the Daniel Boone, Thoreau or Muir tradition—­ learning about survival in the woods, ridding the mind of fear, filling the heart with affection for all the mysteries of the forests, acquiring reverence, wonder and awe for all the handiwork of the Creator. Here a person can come to an understanding basis with the earth and all its creatures.”57 Like his hero Muir (of whom he wrote a children’s biography), Douglas was a ferocious anti-­utilitarian and committed aesthete. He apparently did not worry whether worshipping beautiful places would appear idolatrous. “Man is capable of care as much as he is of destruction,” he wrote in My Wilderness: East to Katahdin. “Preservation of beauty, tenderness in relation to other life, communication with nature—these too can be awakened and given a powerful thrust. If we make conservation a national cause we can raise generations who will learn that the earth itself is sacred. Once a person breaks through to the level where love of beauty is the ideal, he worship the rocks and plains that are America.” Against the relentless depredations of “predatory men,” Americans must spread “love and brotherhood among all the peoples of the earth” and “trust in the God who created the heavens and the earth.” Sounding more like Rachel Carson than Teddy Roosevelt, Douglas wrote that humanity’s true destiny was “sharing life with all the other living things in the universe.” Hence, all “who love wilderness for the spiritual values it represents must now close ranks if we are to have even small islands of it to bequeath to those who are to follow.”58 In the early 1960s these calls to “share life” and “close ranks” might have sounded both mawkish and belligerent, especially coming from a sitting Su‑ preme Court Justice. But by the end of the decade, they sounded merely prescient. By the early 1970s, the idea of wilderness as “the antipode of the beleaguered civilization” was firmly entrenched in American popular culture. As Roderick Nash noted in the 1973 edition of Wilderness and the American Mind, a series of intensifying clashes over development in iconic Western landscapes had leant the issue an air of apocalyptic urgency. “Something precious seemed to be at stake,” Nash wrote, “an uncompromisable matter of right and wrong, good and bad.” Public debate was saturated in religious rhetoric. Environmentalists

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were increasingly seen as atavistic nature worshippers, “druidical wizards” who would stop at nothing to halt civilizational progress in its tracks.59 The idea that environmentalism was a religious movement, especially the romantic preservationism of groups like the Sierra Club, was coming into common currency. Its imagined blend of “pagan animism” and fire-­and-­brimstone evangelicalism was famously crystallized in John McPhee’s 1971 portrait of David Brower, Encounters with the Archdruid. Although he carefully avoided such religious rhetoric in his judicial writings, Douglas clearly saw Sierra Club v. Morton as a chance to inject law with this new sense of eschatological urgency. WILD BILL SPEAKS FOR THE TREES

Douglas’s dissent is largely remembered as an impassioned plea for nature’s right to legal personhood. Many environmentalists have celebrated it as an attack on “Judeo-­Christian” environmental values, a call to forsake what Aldo Leopold (another of Douglas’s heroes) famously called “our Abrahamic concept of land.” It earned Douglas the titles of “animist,” “pantheist,” and even “deep ecologist.” But Douglas was no deep ecologist. On the contrary, the language of his opinion, though suffused with prophetic intensity, was perfectly in keeping with both his romantic individualism and progressive zeal for spiritual reformation. Its philosophical message was mainstream, liberal protestant Nature Religion. What made it radical was its translation into law. In effect, Douglas was arguing for a Bill of Rights for nature.60 The dissent begins under cover of a modest legal proposition. “The critical question of ‘standing,’” Douglas writes, “would be simplified and also put neatly in focus if we fashioned a federal rule that that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.” Given public concern to protect “nature’s ecological equilibrium,” he continues, “environmental objects” should be able to “sue for their own preservation.” In this way, Douglas suggests, the case would be “more properly labeled as Mineral King v. Morton.”61 Landscapes, in other words, should be allowed to sue. In these first few lines, we are confronted not only with the dire condition of American wilderness, but with a moral conflict of epochal proportions. Roads and bulldozers are disturbing nature’s equilibrium; the public is outraged; the land is being despoiled, defaced, and invaded. Yet it has no voice.



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Giving it a voice in the courts, Douglas hastens to add, should not strike us as strange. After all, inanimate objects such as ships and corporations already enjoy legal personhood: “So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.” Warming to the theme of ecological community, he extends membership to a mounting list of beings. Consider the river, which is “the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life.” As plaintiff, the river would speak for this community of autonomous agents. And the humans who care for the river—”whether it be a fisherman, a canoeist, a zoologist, or a logger”—would speak for “the values which the river represents and which are threatened with destruction.”62 Notably, Douglas omits his favorite modifier, “spiritual.” The reader is left to wonder precisely which “values” the river represents. Community? Autonomy? The capaciousness of the term invites multiple interpretations, but its invocation of the generalized sacred is unmistakable. And not just the generalized sacred, but the officially sacred—the sacred of Yellowstone, the flag, and the National Mall. Throughout his dissent, Douglas maintains a tight counterpoint between images of harmony and ruin. As with almost all prophetic speech, the effect is to force the listener onto the horns of a moral dilemma: Are you with the ouzel and the elk, or are you with the forces of destruction? The fate of the country hangs in your hands. Like Muir, who famously railed against “temple destroyers” and “devotees of ravaging commercialism,” Douglas was at home with the language of idolatry. As his biographer Bruce Allen Murphy put it, “This was the Reverend William Douglas’s son preaching with all of his power from his pulpit on the Court.”63 On the side of redemption, meanwhile, Douglas is careful to enlist a heroic cast of characters. Mineral King’s “legitimate spokesmen” are hikers, anglers, hunters, campers, and those who “visit it merely to sit in solitude and wonderment”—in other words, those who have forged an “intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled.” It did not matter if they were “few or many,” he pointedly notes, thus suggesting (as he often did) that wilderness preservation was a legitimate minority cause, not an elitist diversion. Indeed, like the many other minority causes he defended on the Court, it represents the very best in American civil religion: the weak

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against the strong, equality against privilege. After all, he claimed, inanimate objects “are the very core of America’s beauty.” Without standing for these objects, federal agencies—which are “notoriously under the control of powerful interests”—will allow these “priceless bits of Americana” and “environmental wonders” to be “forever lost” or “reduced to the eventual rubble of our urban environment.”64 These battle lines drawn, Douglas delivers the most famous line of his jeremiad: “The voice of the inanimate object, therefore, should not be stilled.” Time is running out, and the fight may still be lost. The “bulldozers of ‘progress’” may “plow under all the aesthetic wonders of this beautiful land.” Nonetheless, those who know these wonders are duty-­bound to protect them, to speak for “those inarticulate members” of “the entire ecological community,” “the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.” Against creeping urbanism and mechanized despoliation, all “forms of life” must be allowed to speak. By the end of Douglas’s quite brief dissent, environmentalism has become nothing less than a defense of Jeffersonian democracy, a struggle for the soul of Nature’s Republic. With scriptural irrevocability, Douglas concludes by quoting Leopold: “The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land.” For those in the know (and there were many by 1972), this reference to Leopoldian “community” would have carried momentous ethical significance, especially in light of the country’s ongoing struggle for civil rights. For Leopold, “enlargement” meant nothing less than emancipation.65 Although its premise was only obliquely endorsed by one fellow justice (Harry Blackmun, who espoused a different though still quite radical theory of standing) and did little to shape subsequent environmental law, Douglas’s dissent was immediately hailed as a battle cry for radical environmental reform.66 The Wilderness Society republished it in its magazine, as did the literary journal North American Review. In the Review, human ecologist Joseph Meeker called it “a major advance in American jurisprudence and perhaps a turning point in our inherited traditions of man-­nature relationships.” To follow Douglas’s lead would be to overturn “the ancient supposition that nature is merely the property of mankind,” Meeker wrote, and even to recognize that “ecocide is morally and legally as culpable as genocide.”67 Pushing the criminal metaphor in an even more lurid direction, the Review’s editors wrote that the concept of legal



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standing for “Nature herself ” was necessary “at a time when concern for her preservation is more than balanced by the hysteria of those whose solution to rape is more and better rape.”68 Douglas the civil libertarian and romantic individualist had been reinvented as a revolutionary. Mineral King, the forgotten wasteland, had been reinvented as virgin wilderness. Still, there was no denying the revolutionary import of his words. Douglas had asserted nature’s intrinsic value. He had made trees and stones full-­fledged actors in the social drama of environmental reform. And although he stopped short of calling wilderness “sacred,” it was clearly what he meant. Like Muir, he had chosen the black-­and-­white language of purity and defilement. In so doing, he fueled a theological fire that had begun to burn in the nascent field of environmental law. IMAGINING PLANETARY CONSCIOUSNESS

For the legal core of his argument, Douglas relied on would become one the best-­known essays in environmental law and ethics, Christopher Stone’s “Should Trees Have Standing?” Stone, then a junior professor at the University of Southern California, had experienced something of an epiphany after hearing about the Mineral King case: what if inanimate natural objects were granted standing to sue, much like ships, municipalities, or corporations? After dashing off an article explaining how and why this might be done, he just managed to get it into Douglas’s hands before his opinion was due. The rest is legal lore. Republished three times between 1988 and 2010, “Should Trees Have Standing?” made Stone into a minor academic celebrity, and it earned him the undying fandom of dark green environmentalists everywhere. Like many benchmarks of theory, however, its argument is often oversimplified and distorted. Stone did not argue that trees (or stones) were conscious, rights-­bearing beings “just like” humans. Nor did he imply that natural objects possessed something like a spirit or soul that should be honored by our (fallen) species, requiring a sea change in environmental attitudes. Quite the contrary, Stone openly doubted that “popular consciousness” mattered much to environmental reform, and he largely rejected the idea, popularized by Lynn White Jr., that “Judeo-­Christian values” were responsible for the ecological crisis, or that Eastern and indigenous spiritual systems offered a more harmonious model. Such cultural/religious explanations “pass too quickly over the less negative but

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simpler view of the situation: there are an increasing number of humans, with increasing wants, and there has been an increasing technology to satisfy them at ‘cost’ to the rest of nature.”69 Presenting himself as a hard-­nosed materialist, Stone placed his argument squarely within the philosophical tradition of secular, scientific liberalism. Standing for trees simply followed logically from standing for women, children, African Americans, Native Americans, and all others whose legal rights were once “unthinkable.” Indeed, Stone argued, what made these prior inclusions in the sphere of moral and legal consideration ultimately thinkable was, in part, the granting of legal rights. “There will be resistance to giving the thing ‘rights’ until it can be seen and valued for itself,” he wrote; “yet, it is hard to see it and value it for itself until we can bring ourselves to give it ‘rights.’”70 Although giving rights to nature presented obvious ontological problems (how, for example, do we determine what a tree “wants” or “needs”), such problems were not insurmountable. Science would be a reliable guide, and with knowledgeable guardians like the Sierra Club Legal Defense Fund, nature’s interests could be discerned without too many metaphysical gyrations. Much like a human person who has entered a vegetative state and can no longer speak or even think, an inanimate object could reasonably be spoken for. Yet in almost the same breath, Stone conceded that Western “environmental consciousness” has “dulled our resentment and our determination to respond” to environmental damage. As a result, we must “give up some psychic investment in our sense of separateness and specialness in the universe.” What is more, this renunciation could coalesce into “a radical new theory or myth— felt as well as intellectualized—of man’s relationship with the rest of nature.” As with the “social facts” that “we are cosigners of a social contract, that the pope is God’s agent, and that all men are created equal,” such a myth would become part of society’s ontological background. It would be taken for granted. Invoking Durkheim and echoing Robert Bellah’s still-­controversial theory of civil religion, Stone seemed to be calling for a full-­blown secular faith, a constitutional covenant with nature.71 Whether he intended it to or not, Stone’s vision of a secular, science-­based nature mythology converged with a strong tradition of progressive, post-­ Darwinian romanticism, one that had long drawn freely on various religious traditions while claiming to transcend them. It is a tradition that welcomes “intentional vitalism,” the notion that nonhuman actors possess full-­blown intentionality and can thus make moral demands on humans on their own terms.72



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It is a tradition that dreams, as Emerson wrote in Nature, of an “occult relation between man and vegetable.” In this vein, Stone wrote: Pantheism, Shintoism, and Taoism all have myths to offer. But they are all, each in its own fashion, quaint, primitive, and archaic. What is needed is a myth that can fit our growing body of knowledge of geophysics, biology, and the cosmos. In this vein, I do not think it too remote that we may come to regard the Earth, as some have suggested, as one organism, of which mankind is a functional part—the mind, perhaps: different from the rest of nature, but different as a man’s brain is from his lungs.”73

Writing before the popularization of James Lovelock’s Gaia hypothesis, Stone quotes a far more esoteric source to support this claim, Directives for New Life by Dane Rudhyar. Rhudyar was a French American astrologer and modernist composer whose writings blended Bergsonianism, theosophy, and “Eastern” religions into what would now be considered quintessential New Age mysticism. In the lengthy passage quoted by Stone, he writes, “The Earth is not only a material mass. Consciousness is not only ‘human’; it exists at animal and vegetable levels, and most likely must be latent, or operating in some form, in the molecule and the atom; and all these diverse and in a sense hierarchical modes of activity and consciousness should be seen integrated in and perhaps transcended by an all-­encompassing and ‘eonic’ planetary Consciousness.” Although Stone acknowledged that “such a lofty fancy as the planetarization of consciousness” might seem out of step with the hard realities of law, he maintained that “all the dominant changes we see about us point in its direction.”74 His dismissal of “quaint” religions notwithstanding, it is not surprising that both supporters and critics saw Stone’s essay as pushing a “pantheist” and/or “animist” ideology. What they have tended to miss was his subtle insistence that the dawning of ecological consciousness would take place in the socially constructed space of myth. Just like the constitutional “myth” that “all men are created equal,” the myth of planetary consciousness would simply mark one more advance in the project of democratic civilization. Although seasoned with the uncompromising rights-­talk and scientistic utilitarianism of early ’70s counterculture, Stone’s idiom was hardly esoteric. It belonged to the robust tradition of spiritual eclecticism and progressive universalism that has defined the American Spiritual Left.75 It is therefore a mistake to claim that Stone’s theory

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amounts to a reversal of what the environmental lawyer Dan Tarlock, echoing Lynn White Jr., calls the “Greco-­Christian tradition” of dualistic dominionism.76 Educated at Harvard and Yale and trained at the white-­shoe law firm Cravath, Swaine, and Moore, Stone was no pagan heretic. Much like Douglas, he had simply adapted the cosmopolitan and commodious spiritual sensibilities of transcendentalist nature religion to the new field of environmental law.77 By arguing for nature’s standing, Stone had thrown down a philosophical gauntlet, but he had also placed secular environmentalists in a serious bind. If traditional religions no longer understood nature in properly scientific, secular terms, then on what grounds could we grant it standing? After all, the very concept of rights was premised on the sanctity of human life, and human life alone. Where was the “divine spark” in a tree? How could trees have standing without being sacred? TRANSCENDENCE AND PLASTICITY

Laurence Tribe’s “Ways Not to Think about Plastic Trees,” published two years later, took up this colossal question. Framed as a modest rebuttal to the urban planner Martin Krieger, who had controversially proposed replacing degraded natural environments with synthetic replicas (including plastic trees), Tribe’s article offered nothing less than a grand synthesis of environmental ethics.78 And in keeping with the theological tenor of much environmental debate during this period, it framed this synthesis in fundamentally religious terms. Typically glossed as an early attack on “homocentrism” (or “anthropocentrism,” as it would more often be called), its main target was in fact the “dominant religious consciousness” that supposedly gave rise to this ideological bias.79 For Tribe, the key feature of this consciousness was “secularized transcendence,” a worldview in which Judeo-­Christian mastery had been filtered through instrumental reason.80 God had been replaced by individual interests, human will placed at the center of reality. Clearly evident in Rawlsian liberalism (not surprisingly the philosophical system that concerned him most), secularized transcendence denied “the existence of anything sacred in the world and reduce[d] all thought to the combined operations of formal reason and instrumental prudence in the service of desire.” The trouble, Tribe argued, was that there was a “growing sense in contemporary industrialized societies that there is in fact something sacred in the natural,” a sense that nonetheless can be “wholly secular” (1336, 1337). How could environmental law accommodate



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this sense of the secular sacred without re-­enchanting nature, which would require a dangerous return to premodern religiosity? How could it preserve the values of Enlightenment secularity without continuing to treat nature as so much dead, disenchanted matter? Tribe’s ultimate answer was far from clear, but his argument offers rich insight into the intellectual milieu of early environmental law. For authority he appealed not to legal theorists or philosophers, but sociologists of religion (Robert Bellah, Max Weber, Edward Shils), theologians (Paul Tillich), and historians (especially Lynn White Jr.). He depicted environmental law not merely as a practical response to ecological destruction, but as a symptom of an all-­ encompassing cultural crisis. Echoing Stone, however, he warned against responding to this crisis by embracing premodern or non-­Western spiritual systems, as so many were doing at the time. A return to “immanence” would mean returning to a static, superstitious view of the natural order, which secular society could not countenance. The “sanctification of nature” would simply revive the “pantheistic belief that all objects and places in the natural world possessed guardian spirits demanding propitiation as security against unspeakable harm.” Even if it succeeded in halting environmental collapse, “to restore anything like pagan animism would be to risk sanctifying the present, with all its faults and inadequacies,” especially the “subjugation” and “deprivation” of the powerless. To preserve the possibility of justice and progress, environmentalists must support “the social evolution of humanity” and reject the “sterility and paralysis” of a fully enchanted world (1337–38). What we need, Tribe argued, was a synthesis of immanence and transcendence, a merging of perspectives. To confront our ecological-­spiritual crisis, humanity must begin to imagine itself as both “sacred observer” and “grand manipulator.” It would thereby perceive intrinsic significance (“sanctity, if you will”) not in nature itself, but in the principles “according to which we orchestrate our relationships with one another and with the physical world of which we are a part” (1338, 1339). A heady prescription, and all because someone wanted to plant some plastic trees. In fact, plastic trees are an essential part of the story. From beginning to end, the main empirical thread running through his otherwise highly abstract argument is landscape—more specifically, the sacred (and profane) landscapes of the modern sublime: Glen Canyon versus Disney World. Laying his romantic cards on the table, he opens the essay with an elegiac epigraph from Brower, “Remember these things lost;/and under the vaulting roof of the cathedral/ burn a candle to the memory,” which referred to a cavern, known as the Cathe-

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dral in the Desert, submerged by the creation of Lake Powell. Tribe urged “a sense of reverence for whatever stands beyond human manipulation and its willed consequences” (1340). But he was no naïve wilderness-­worshipper. On the contrary, he argued that the synthesis of immanence and transcendence would render traditional nature/culture distinctions, hypostasized by the wilderness idea, completely irrelevant. Once again, landscape tells us why: At the most elementary level, after all, the impulse that is felt by many as awe and respect for a vast canyon or a spider’s web has much in common with the sense of sanctity felt by others as they stand before the structures at Stonehenge or the Cathedral at Chartres. What differentiates a silent wilderness or a breathtaking monument from a littered campground or a tornado-­struck town cannot be summarized in any facile contrast between the works of “man” and those of “nature.”

Still, preventing wilderness areas from becoming “more Walt Disney Worlds and Coney islands” serves a crucial moral function, Tribe suggests. Treating such places as if they have intrinsic value—even as if they possess independent rights—creates new conceptual possibilities, teaching us to assign nature a “fraternal rather than an exploited role.” Echoing the omnipresent Lynn White Jr., he invokes Saint Francis of Assisi, who “could embrace Brother Fire and Sister Water,” while “Western societies in the last third of this century may be unable to entertain seriously the notion that a mountain or a seashore has intrinsic needs and can make independent moral claims upon our designs.” Plastic trees can make no such claim because they “represent nature abstracted to pure categories of human need. . . . Much like black lawn boy statuary defacing too many suburban yards, plastic trees implicitly reduce the entities they portray to terms of serviceability, utility, and adornment. And such caricatures in turn reinforce the belief that the depicted objects exist not for themselves but only to serve superior needs” (1315, 1340, 1345–47). Enslavement of people, enslavement of land: for Tribe, as for Leopold, the two went hand in hand. That these themes appear in relation to environmental aesthetics might strike us as perverse. But Tribe, who would go on to become the preeminent liberal constitutional lawyer of his generation, insisted on the link. Indeed, after raising the specter of racial oppression, his essay ends as it begins, with landscape. He quotes Max Horkheimer:



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We cannot maintain that the pleasure a man gets from a landscape . . . would last long if he were convinced a priori that the forms and colors he sees are just forms and colors, that all structures in which they play a role are purely subjective and have no relation whatsoever to any meaningful order or totality, they simply and necessarily express nothing. . . . No walk through the landscape is necessary any longer; and thus the very concept of landscape as experienced by a pedestrian becomes meaningless and arbitrary. Landscape deteriorates altogether into landscaping. (1347–48)

For Tribe, this “deterioration”—clearly, a kind of disenchantment—is what environmental law is meant to fight. But the “meaningful order or totality” toward which he gestures seems so very fragile. Indeed, it is merely the “process” whereby such meaning is attributed to nature. Sanctity hangs by a thread. Some wished to cut this thread once and for all. In a caustic rejoinder to Tribe and Stone, the philosopher Mark Sagoff tried to refute their appeal to intrinsic values and natural rights, and Douglas’s Mineral King dissent provided the perfect satirical foil. “Environmentalists always assume that the interests of these objects are opposed to development,” Sagoff wrote. How do they know this? Why wouldn’t Mineral King want to host a ski resort, after doing nothing for a billion years? In another few millennia it will be back to original condition just the same. The Sequoia National Forest tells the developer that it wants a ski lift by a certain declivity of its hills and snowiness during the winter—immediately obvious to the sight—and that it needs a four lane highway by the appearance of certain valley passages and obvious scenic turnouts on the mountainsides. The seashore, meanwhile, indicates its willingness to entertain poor people from Oakland by becoming covered with great quantities of sand. Finally, it is reasonable to think that Old Man River might do something for a change, like make electricity, and not just keep on rolling along. It is an incredible optimism which assumes the guardians appointed to represent nature would take an environmentalist position.81

Sagoff’s point was not that development is good for wilderness, however, but that our reasons for doing anything with wilderness are our reasons alone, not nature’s. Presaging Cronon’s constructivist turn, he looked toward history and culture to defend preservation. Wilderness, he argued, was the expression of

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particular cultural values—”freedom, innocence, courage, strength” (227)— and by defending those values, we express who “we” as nation wish to be. In the end, it is all about national identity. Not surprisingly, it is also all about religion. Unlike Stone and Tribe, who discussed Christian “consciousness” in the broadest philosophical terms, Sagoff looked to historians such as Perry Miller and Roderick Nash to explain America’s distinctively Calvinist obsession with wilderness (229–35). “Nature is a symbol of the divine,” he wrote; “therefore, the wilderness assures Americans of their special relation to God.” Though secularized over time by post-­ Christian artists and thinkers (Sagoff’s history was decidedly of the Great Man variety), this search for supra-­human virtue and manifest destiny persists. At the same time, Sagoff saw something almost transhistorical in environmentalism. It all boils down to “the oldest thought in the world,” he wrote: the religious urge to atone (233, 243, 241). Wild landscapes, exactly like great works of art, call on us to realize our better selves, Sagoff suggested. Although this call is the product of cultural convention, a kind of unconscious ventriloquism, it is objectively real, an external demand apprehended in an immediate and personal way (227–28).82 Through wilderness, as through art, we call to ourselves. To silence this call by destroying wild places is to diminish our understanding of the qualities that these places express, especially the qualities enshrined in the Constitution—for example, individual freedom (259). Sounding ironically like Douglas, he concludes, “The obligation to preserve nature, then, is an obligation to our cultural tradition, to the values which we have cherished and in terms of which nature and this nation are still to be described” (265). Somehow they all ended up in a similar place: for liberal and conservative alike, to preserve wilderness is to honor our national covenant with nature.83 STANDING WITHOUT SPIRITUALITY

Most scholars treat the plastic trees debate as an interesting footnote to the history of environmental law. With their deep concern for wilderness and interest in metaphysical questions, Tribe, Stone, and Sagoff seem like charming reminders of a world before climate change, the Christian Right, and the Koch brothers, a time when environmentalists could afford to speculate on things like immanence, transcendence, and cultural authenticity. The legal scholar Jedediah Purdy recently noted that Tribe’s article has “an exotic savor today,”



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as does much green legal philosophy from this period. In the early 1970s “environmental ethics and law stood back-­to-­back, then strode rapidly in opposite directions,” Purdy laments.84 Yet even Purdy, who argues for a return to ethical speculation, leaves religion out of his account. That scholars like Tribe and Stone were directly addressing not just ethical but religious questions is hardly ever mentioned in legal historiography. Tribe’s essay alone has been cited thousands of times in subsequent decades, including in important judicial opinions, but one would be hard-­pressed to find more than a handful of passing references to immanence, transcendence, or secularization, the conceptual cornerstones of his argument. The same goes for Stone, whose essay on standing is one of the best-­known texts in environmental law, and whose name is rarely (if ever) mentioned in the same breath as Dane Rudhyar. In environmental law, the sacred is simply no longer part of “serious” theoretical discussion, nor has it been for a very long time. This forgetfulness is intriguing. Was their “god-­talk” seen as irrelevant? Was it embarrassing? Or did legal thinkers worry that it would fuel the fire of Christian anti-­environmentalism? Clues exist in subsequent legal commentary. Writing at the same time as Sagoff, the environmental lawyer Dan Tarlock argued that transcendental “nature-­mysticism” revealed the “marginal legitimacy” of preservationist values and expressed “a naïve and elegiac celebration of an irrelevant vision.” While crediting Tribe for making a powerful argument, he describes it as “a reaffirmance of transcendentalism and a kind of instrumental pantheism.” To elevate such ideas above all others was “fundamentally inconsistent with democratic values.”85 Ten years later another prominent environmental lawyer, Daniel Farber, accused both Tribe and Sagoff of trying to establish “quasi-­religious” foundations for environmentalism, and “to draw clear lines between the profane and the sacred.” Their goal, he alleged, was to find a “metaphysical” solution to the profanity of “ordinary life.”86 Joseph Sax, one of the architects of modern environmental law, essentially conceded the point in 1980. He urged his fellow preservationists to frankly acknowledge their position as “secular prophets” whose essential message is “follow me and I will show you how to become the sort of person you really want to be.”87 Although Sax found this message salutary, he wanted wilderness worshippers to come clean about their motives.88 Given the ferocity with which conservatives fought back against environmental regulation in the 1980s and ’90s, it should probably come as no surprise that a bias against “soft and metaphysical methods of analysis” became deeply

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engrained in environmental law, especially on the all-­important area of standing.89 After Mineral King, courts accepted broader criteria for environmental injury, accepting increasingly “attenuated lines of causation” between environmental damage and personal injury. But in the early 1990s the Rehnquist court—led by Justice Scalia, an outspoken critic of liberalized standing requirements and open skeptic of environmental law—attempted to reverse this trend. A major turning point was Lujan v. Defenders of Wildlife, which arose when a group of environmental organizations challenged government funding of development projects in Egypt and Sri Lanka that could harm endangered species. To establish standing, two plaintiffs testified that they had traveled to Egypt and Sri Lanka, where they had observed the habitats of the Nile crocodile and Asian elephant, among other endangered species. The Court argued that since they had no concrete plans to return to these places, they could claim no “imminent” injury. The Court also rejected several other theories of standing offered by the plaintiffs, including the so-­called ecosystem nexus theory, which posited that any person who uses any part of a “contiguous ecosystem” has standing, as well as the so-­called animal nexus theory, which would give the right to sue to anyone interested in seeing or studying an endangered species. In rejecting these theories—which Scalia derided as “beyond all reason,” “beyond the limit,” and “pure speculation and fantasy”—the Court signaled a major shift in standing jurisprudence: to be injured-­in-­fact, you must show a direct, personal attack on your interests. The interconnectedness of ecosystems across space; the professional commitments of wildlife biologists and other scientists to the preservation of endangered species; the interests of ecotourists in observing healthy, intact ecosystems: these were all dismissed as beneath law’s consideration. Scalia’s “undisguised hostility” toward environmental regulation was already well known.90 Before joining the Court, he had written an influential article suggesting that elite environmentalists had exploited the law of standing to force their tastes and prejudices on the public, and his opinions in Lujan and other cases from this period announced his intention to stop them in their tracks.91 His reactionary take on standing effectively turned the citizen suit provision into an extension of nuisance law,92 and as his critics have frequently noted, it tended to cast doubt not only on the legitimacy of environmental concerns, but on the very idea that harm to the environment is legally cognizable at all.93 Environmentalists were on the ropes. This shift on the high court prompted an intense round of legal soul-­



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searching. This time, however, religion was nowhere to be found. Legal theorists had much to say about spatiality and the interconnectedness of ecosystems, the moral status of nonhuman animals, and the strategic advantages of anthropocentrism.94 But they largely avoided the spiritual questions that animated the plastic trees debate. As Jonathan Z. Cannon speculated in a recent analysis of Supreme Court decisions on environmental issues, “ecocentrism and its religious or spiritual variants” have proven polarizing because they consecrate “pristine environments” and thus implicitly denigrate the places where most people live and work. They are tainted with a pervasive “strangeness,” which is clearly reflected in the Supreme Court’s hard-­nosed rulings on environmental protection.95 In recent years, some libertarian scholars have gone so far as to suggest that the real purpose of environmental law is to build a new religious establishment, an “official religion” of biocentric spirituality. A handful of others have defended the spiritual values underlying wilderness protection. Clearly, though, an aversion to religious “strangeness” has become deeply entrenched in the field. If, as many argue, we have truly entered a “post-­secular” age, environmental law has not heard the news. CONCLUSION: MAKING THE CULT SAFE FOR DEMOCRACY

The most famous literary naturalists of the early twentieth century, John Muir and John Burroughs, competed “for the title of nature’s truest lover.”96 It was much more than a professional rivalry. Burroughs, an outspoken critic of conventional Christianity and believer in a chaotic, indifferent universe, scorned Muir’s rapturous adoration of God’s grand design. Where Muir saw purity, benevolence, and harmony, Burroughs saw amoral forces that beggared human comprehension. The two friends came from similar cultural backgrounds, both born into deeply pious, Calvinist families (Muir’s Campbellite-­Restorationist, Burroughs’s Primitive Baptist). Both left the church as young men, attracted to transcendentalism, Romantic literature, and natural science. In many ways, they were kindred spirits. But as they aged, they followed divergent spiritual paths. Muir’s wilderness writings grew increasingly worshipful and theistic, pushing toward ever more glorious heights of alpine transcendence. Burroughs dug deeper into the dirt, embracing the immanent sacrality of agrarian rootedness.97 This is why, in an otherwise glowing 1912 review of Muir’s Yosemite, Bur-

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roughs complained that readers may get “a little tired at times of the frequent recurrence in his pages of a certain note—a note which doubtless dates from his inherited Scottish Presbyterianism.” Whatever else wild nature is, she certainly is not pious, and has never been trained in the Sunday-­school. But, as reflected in Mr. Muir’s pages, she very often seems on her way to or from the kirk. All his streams and waterfalls and avalanches and storm-­buffeted trees sing songs, or hymns, or psalms, or rejoice in some other proper Presbyterian manner. One would hardly be surprised to hear his avalanches break out with the Doxology.98

In his irreverent way, Burroughs was trying to mark an epoch: though by no means an orthodox Christian, Muir still belonged to an obsolete and faintly embarrassing past. Readers of Burroughs’s book, The Light of Day: Religious Discussions and Criticisms from a Naturalist’s Point of View (1900), might have expected more blasphemous words. There he had written, “The universe is no more a temple than it is a brothel or a library. The cosmos knows no God—it is super deum.” Science, which had “done more for the development of Western civilization in one hundred years than Christianity did in eighteen hundred,” had revealed that “the great moral governor” was merely “a fiction of our own brains.”99 To see moral order in nature was to cling to a delusion. Yet Burroughs was no disenchanted rationalist. A disciple of Emerson, Whitman, and Bergson, he felt a wild energy pulsing through the entire material world. He was acutely sensitive to the numinous. “The universe is so stupendous, so unspeakable, that we dare not, cannot, name any end or purpose for which it exists,” he wrote. “It is because it is.”100 Wordlessly echoing Yahweh’s “I am that I am,” Nature inspired in Burroughs a vitalist mysticism. “One fancies every living thing as not only returning its mineral elements to the soil, but as in some subtle way leaving its vital forces also, and thus contributing to the inpalpable, invisible storehouse of vital energy of the globe.”101 One could perceive this energy and accept the death of God. Indeed, for Burroughs, this energy had supplanted God. In this sense, he was what the radical environmental writer Ed Abbey would call an “earthiest.” All is imminent; all is sacred in and of itself. It is because it is. Where Muir tried to see through mountains to the divine essence behind, Burroughs’s eye stopped at the rock. This, in protestant terms, is pure idolatry. The eye must always look beyond. Burroughs was at the vanguard of what the sociologist Christian Smith has



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dubbed “the secular revolution.” Far from the organic and inevitable fading away of religion described by classical secularization theory, this was an organized and deliberate struggle by intellectual elites “to overthrow a religious establishment’s control over socially legitimate knowledge,” a struggle that began in the 1870s and fully penetrated popular culture by the 1920s.102 In his fight to formulate an environmental ethic that rejected Christian metaphysics and morality but embraced enchantment, Burroughs confronted a dilemma that still plagues secular environmentalism. If nature is no more a temple than it is a brothel or library, wherein lies its sanctity? If the “great moral governor” is dead, to whom can we appeal for moral authority? Indeed, this problem may be more acute a century later. In a society with no real religious center, one that many claim is the most religiously diverse in the world,103 any appeal to the sacred can be dismissed as undemocratic. It is no wonder that lawyers and policymakers have immersed themselves in the safely logical world of welfare economics. Religion is just too messy, too divisive. Best to “keep it to ourselves.” The trouble is, we can’t keep it to ourselves. Whether or not our perception of the sacred in nature is hardwired (as some scientists think), our religious history also refuses to go away. Law and policy may try to flee from this history and purify themselves of religious thinking, but in so doing they alienate themselves from the society they aim to regulate and improve. As the legal theorist Douglas Kysar argues, law “must form part of the social glue that binds a political community together in pursuit of long-­term and uncertain goals. To serve that function, in turn, laws must have continuity with the concepts, values, and discourses expressed by real people. By literally denying the sacredness of life—and indeed the distinctiveness of anything—dominant ways of approaching environmental law fail these tests.”104 The genius of Muir, Carson, Leopold, and other environmental leaders lay, in part, in their ability to harmonize their ecological vision with the spiritual sensibilities of liberal protestants and their secular descendants—that is to say, of America’s de facto religious establishment. Without a doubt, this harmonizing could be exclusionary. Despite the rise of movements such as environmental justice (with roots in the Black Church) and evangelical Creation Care, mainstream environmentalism still bears the unmistakable stamp of mainline, WASP religiosity: an accent on ascetic virtue; a bias toward internalized, egalitarian belief; moral precisionism; and a yearning for an unmediated I/Thou relation to the divine. Many environmentalists still see through the lens of aesthetic spirituality. This lens, as Cronon recognized, can induce a kind of moral

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blindness. We have already seen how people can suffer as a result. Were it not for aesthetic spiritualty, the Native plaintiffs in the Snowbowl case might have saved the San Francisco Peaks. Yet wilderness still has radical potential as a remedy for secular transcendence. Constrained as he was by the WASP environmental imagination, Douglas saw this potential. To give legal standing to a landscape—wild or domesticated—would be to tilt the scales toward re-­enchantment. It would pit the power of the state and civil society against the desacralization of nature. This is surely one reason why Stone’s theory of standing, despite doing little to change the trajectory of environmental law “on the books,” still enjoys such popularity. It promises a redemptive, ecocentric expansion of the civil sphere. With roots in both the radical ecumenicism of romantic nature religion and Enlightenment secularity, it includes more than it excludes. Anyone who feels that law should express true solidarity with nature can support it. Its sense of sanctity (if you will) is fluid and capacious. Make no mistake, however, whatever spiritual commitments might motivate this expression of solidarity, it would be perceived by many Americans as an act of consecration. It would be an experiment in political theology. This is the inevitable paradox of wilderness. It is a space of spiritual communion, sanctified by the state—a space of nonviolence, violently imposed.105 The challenge is to make that sacred violence sacred for all. For those who cling to the secular dream of politics without religion, and of an environmental policy untainted by spiritual values, this might be a scary prospect. But there are scarier prospects still, including an irrevocable divorce of environmentalism from conservative evangelicalism. American environmentalism has always existed in an ambiguous space between faith and faithlessness. When people try to pin it down as religion “in disguise,” sympathetically or unsympathetically, they miss this fundamental, constitutive ambiguity. In the environmental imagination, religion is everywhere and nowhere at once. It is always ephemeral. This ephemerality is a source of strength and promise.

6 Looking Askance at the Sacred

On June 18, 2015, just as I was preparing to submit the final manuscript of this book, Pope Francis issued his momentous encyclical on environmental justice, “Laudato si’.”1 In the hours leading up to official publication, Francis released a series of excerpts on the social media site Twitter. One in particular grabbed the world’s attention: “The earth, our home, is beginning to look more and more like an immense pile of filth.”2 The line immediately went viral. Within a couple of days it had been retweeted more than 30,000 times, far more than any other quotation from the 45,000-­word encyclical. Many major news outlets used it to lead their coverage, and many more singled it out for special attention.3 Some, including the New York Times editorial page, quoted the next sentence from the encyclical, “In many parts of the planet, the elderly lament that once beautiful landscapes are now covered with rubbish,” which clarified that the pope was addressing the specific problem of toxic waste.4 (His language was also much less pungent in Spanish and Italian.) But in the English-­speaking world, it was the “immense pile of filth” that quickly became the master metaphor for the pope’s judgment on humanity. 153

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An interesting story could be told about how this metaphor spread through the public sphere in the wake of “Laudato si’,” but not here. Let me simply note that it appeared to electrify the Left and outrage the Right, who pounced on it as proof that the papacy had fallen victim to the apocalyptic, antimodern hysteria of radical environmentalism. It was a classic piece of “1970s-­style doom-­ mongering about technological civilization,” wrote Times columnist David Brooks, capturing the spirit of mainstream conservative critique.5 Supporters on the Left, meanwhile, tended to cite it as an emblem of the pope’s unsparing and clear-­eyed indictment of what he called our “throwaway culture.” As the Times editorial board glossed the quotation, “we mortals have made a mess of it, polluting the air and water, destroying forests and wildlife, wantonly wasting resources.”6 Why did this one image become such a fertile and contested symbol? One answer lies in the symbolic fertility of desecrated land. A masterful environmental rhetorician, Pope Francis understood that nothing works better than a landscape defiled to crystallize a vast range of ills into one emotionally captivating, morally galvanizing icon. Much as the famous 1968 photograph of earth appearing over the moon’s horizon, Earthrise, drew on the landscape idea to condense mounting environmental concern into an icon of planetary interdependence, so did the pope’s “immense pile of filth” condense the massive abstraction of climate change into an icon of planetary degradation.7 Citing the rhetoric of both place (“the earth, our home”) and landscape (“beginning to look more and more like an immense pile of filth”), these seventeen words reduced the dizzying complexity of twenty-­first-­century environmental problems to a black-­and-­white picture of absolute moral corruption. Our home is becoming a dump. “Filth,” after all, is the filthiest of words, a term of unequivocal condemnation. It bespeaks unspeakable impurity, “that which is so fundamentally alien that it must be rejected.”8 A “pile of filth” is even worse. It invokes the primal contamination of human excrement—“the only species that soils its own nest.” Especially coming from the world’s best-­known arbiter of sin, it evinces visceral disgust, a gut reaction to the utterly profane. On its own, this picture of defilement struck some as unreasonably dark. In the encyclical, however, it plays an important rhetorical role. In many of the letter’s most powerful and theologically significant passages, the pope’s purpose seem clear: to re-­enchant those “once-­beautiful landscapes” now “covered with rubbish.” As Durkheimian cultural studies have shown again and again, this



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is why the concept of defilement exists: to generate and reinforce collective emotional attachments to sacred objects. In the pope’s letter, this sacred object is nothing less than the earth itself, though not the abstract, dematerialized earth of cosmopolitan rhetoric or the distanciated, pristine orb of images like Earthrise. His earth is the concrete, intimate, and intensely sacramental earth of everyday life. Among other things, “Laudato si’” is a love letter to the physical world. For a Christian, this embrace of re-­enchanted materiality pre­sents major doctrinal risks, which Francis confronts directly. He takes pains to note that Jesus “was far removed from philosophies which despised the body, matter and the things of the world,” and he laments that such “unhealthy dualisms, nonetheless, left a mark on certain Christian thinkers in the course of history and disfigured the Gospel.”9 Deftly navigating both millennia of theological debate and the religious minefield of contemporary environmental politics, he argues that while “there is a mystical meaning to be found in a leaf, in a mountain trail, in a dewdrop, in a poor person’s face,” this is “not because the finite things of this world are really divine, but because the mystic experiences the intimate connection between God and all beings” (168–69). For Francis, this “intimate connection” is sensuous, embodied, and emplaced; one might even say “earthy.” “The entire material universe speaks of God’s love, his boundless affection for us,” he writes: Soil, water, mountains: everything is, as it were, a caress of God. The history of our friendship with God is always linked to particular places which take on an intensely personal meaning; we all remember places, and revisiting those memories does us much good. Anyone who has grown up in the hills or used to sit by the spring to drink, or played outdoors in the neighbourhood square; going back to these places is a chance to recover something of their true selves. (61–62)

For all the good it has done, Francis argues, science cannot reach this deepest level of emotional investment in land and nature, but religion can. As an exemplar, he points again and again to his namesake, St. Francis of Assisi. “Just as happens when we fall in love with someone,” the pope writes, “whenever he would gaze at the sun, the moon or the smallest of animals, he burst into song, drawing all other creatures into his praise. . . . His response to the world around him was so much more than intellectual appreciation or economic calculus,

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for to him each and every creature was a sister united to him by bonds of affection” (10). Clearly aware that his call to affection would be “written off as naive romanticism,” Pope Francis insists that to exploit nature is both sinful and suicidal. Re-­enchantment is a survival strategy. But it is one that will require rethinking our model of the ecological subject: If we approach nature and the environment without this openness to awe and wonder, if we no longer speak the language of fraternity and beauty in our relationship with the world, our attitude will be that of masters, consumers, ruthless exploiters, unable to set limits on their immediate needs. By contrast, if we feel intimately united with all that exists, then sobriety and care will well up spontaneously. The poverty and austerity of Saint Francis were no mere veneer of asceticism, but something much more radical: a refusal to turn reality into an object simply to be used and controlled. What is more, Saint Francis, faithful to Scripture, invites us to see nature as a magnificent book in which God speaks to us and grants us a glimpse of his infinite beauty and goodness. . . . For this reason, Francis asked that part of the friary garden always be left untouched, so that wild flowers and herbs could grow there, and those who saw them could raise their minds to God, the Creator of such beauty. Rather than a problem to be solved, the world is a joyful mystery to be contemplated with gladness and praise. (11–12)

In such passages, poetics align with theology. From the mini-­wilderness in the friary garden to the entire earth as a pile of filth, landscape confronts us with a moral urgency that only aesthetic discourse can convey. Through the language of enchanted objects, the pope tries to bring earth back to life. In a world turned “ever more limited and grey” by fantasies of technoscientific mastery and unlimited economic growth, “Human beings and material objects no longer extend a friendly hand to one another; the relationship has become confrontational” (79). Read through the lens of cultural sociology, “Laudato si’” is a virtuosic performance of environmental iconicity, enacting its argument through the visual counterpoint of purity and defilement, intimacy and alienation, life and death.10 Yet it is also an extended polemic against secular spirituality. “Our relationship with the environment can never be isolated from our relationship with others and with God,” the letter states. “Otherwise, it would be nothing more



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than romantic individualism dressed up in ecological garb, locking us into a stifling immanence.” From this affirmation of divine transcendence flows an all-­ embracing and uncompromising commitment to the defense of all vulnerable life forms, including human embryos: “Since everything is interrelated, concern for the protection of nature is also incompatible with the justification of abortion” (89). Defending the sanctity of life is not a private choice, confined to the sovereign “conscience space” of the individual. It is an article of public faith. This ecocentric argument against abortion brings me to crux of my conclusion, although I must leave the critical question of reproductive rights aside. Can secular liberalism accommodate an environmental theology that is unapologetically public, anti-­individualistic, and hierarchical? Can it accept an environmental outlook that collapses the distinction between spirit and matter, that sees nature as the material embodiment of divinity, not its symbolic representation? Though hailed as a breakthrough in relations between religion and science, “Laudato si’” challenges a great deal of secular common sense. In the terms I have laid out in this book, it amounts to a call for public geopiety. But if a group of Catholics sued to protect a valued landscape on spiritual grounds, would they fare any better than the Navajo? On what grounds would they establish standing? Our law and policy have no language for the injury caused by desecration. This is not just a problem for the secular state. It is a problem for anyone who wants to have a public conversation about sacred space in a secular age. In chapter 1, I asked, “What does ‘desecration’ mean in a world where nothing and everything are sacred?” Note the quotation marks around “desecration,” which unintentionally betrayed my own secular ambivalence, my instinctive disavowal of any presumption that you, my reader, might share my sense of what counts as sacred or profane in nature. What I am pointing to here is not the problem of moral relativism, but of communicative failure. When our senses of sacred space are so fluid and diverse, how do we find a shared environmental language that does not hypostasize and domesticate “religious” ways of knowing nature? With its clumsy, Eurocentric universalism, the very term “sacred space” is inadequate to the task.11 “Sacred landscape” is even worse because it tends to privilege the visual and the aesthetic. Our suspicion of what I am calling public geopiety—of shared political commitments to defend objectively sacred places against defilement by an impure other—has left us with few socially acceptable ways of appealing to purity. Romantic individualism is one, and it is a way that has shaped the physical landscape in profound ways, most notably through the

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creation of parks and wilderness areas. But as I tried to suggest in my chapter on the San Francisco Peaks, the cost to marginalized peoples has been steep. The Navajo and the Hopi know all too well how stifling Romantic immanence can be. As an appeal for environmental justice that calls explicitly for greater recognition of indigenous land claims, “Laudato si’” attempts to articulate a shared language of environmental purity that breaks the strictures of private sacrality. It refuses to put quotation marks around the sacred. In this way, it desecularizes environmental discourse. This kind of public geopiety makes secular pluralists nervous, and often for good reason. As the religion scholar Gordon Lynch writes: The sacred has a shadow side. While sacred forms symbolize and perpetuate deep moral and existential commitments, they equally have the capacity to legitimate oppressive social orders, violence, and the breach of basic human rights of freedom and well-­being. Rather than necessarily binding society into a shared moral order of meanings and values, as Durkheim suggested, the multiplicity of contemporary forms of the sacred threatens to fragment society and provides potent symbolic material for social conflict.12

With sacred space at the center of so many intractable religious conflicts, one cannot blame secular environmentalists for steering clear of “god talk.” But there is a fine line between diffidence and disdain. In a powerful polemic against the concept of purity in environmental discourse, for example, the historian Richard White admonishes that there are no “pure entities that will lead us through a mixed and dirty world.” The search for purity in nature stems from an “essentially religious impulse,” White argues, one that can only lead to moral absolutism and political irrelevance. “We don’t need prophets,” he asserts. “We don’t need appeals to the Force. We need a cold assessment of the possibilities for the future, good as well as bad, that our own complicated and paradoxical values and our own messy embodiment in the natural world contain.”13 This derisive allusion to “the Force” (the mystical power from Star Wars) perfectly illustrates the problem I am trying to address. As Pope Francis appears to recognize and White seems to miss, it is precisely “our own messy embodiment in the natural world” that grounds our deepest moral commitments to place and environment, and it is a mistake to assume that religion cannot help us make sense of this fact.14 Suppressing the sacred not only stifles social solidarity; it also reinforces a repressive tradition of defining “good” or “true”



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religion as the politically disengaged, private search for spiritual transcendence. This kind of religion, as Robert Orsi tartly explains, “is rational, respectful of persons, noncoercive, mature, nonanthropomorphic in its higher forms, mystical (as opposed to ritualistic), unmediated and agreeable to democracy (no hierarchy in gilded robes and fancy hats), monotheistic (no angels, saints, demons, ancestors), emotionally controlled, a reality of mind and spirit not body and matter.”15 It is also a religion without pilgrimages, shrines, sacred groves, or holy mountains. It is, in this sense, a religion without geography. The trouble is, no such religion exists. As I argued in chapter 1, even a perfectly sublated Protestant space—a church stripped of every idol—is a space inscribed with sacred meaning. It is a presence marked by a sacred absence. Whether we choose to acknowledge it or not, religion always involves the making of places.16 Most of the time, this happens in a mundane, quiet, uncontentious way. This is true of place-­making in general, and of the culturally specific place-­making practices that we call “landscape.” After all, if landscapes are texts, as many geographers have claimed, then they are texts we write mostly in our collective sleep.17 Their meanings are inchoate, dreamlike, and elusive. We sense them with our bodies as much as we decode them with our eyes. Unlike written texts, they are both inhabited and interpreted. We literally live inside landscapes, and most of the time we experience them not as semiotic systems but as affective milieux, as patterned intensities of feeling.18 Only occasionally do we adopt a distanced perspective and ask what landscapes are “telling” us, what stories they reveal, what symbols they contain. When we do, we often struggle to find the right language. Aesthetic discourses such as the picturesque and the sublime are notoriously restrictive, for landscape is much more than an aesthetic phenomenon. As an emergent property of place, it embodies the full complexity of the social. Landscapes are lived, viewed, and practiced.19 Even in modern America, where landscape is usually treated as mere scenery, we have ways of expressing this complex phenomenology. In the concept of a “working landscape,” for example, or even in the concept of “land” itself, we hear echoes of a different discourse, one that dwells on dwelling. In this discourse, “landscape tells—or rather is—a story,” explains the anthropologist Tim Ingold: It enfolds the lives and times of predecessors who, over the generations, have moved around in it and played their part in its formation. To perceive the landscape is therefore to carry out an act of remembrance, and remembering is not so much a matter of calling up an internal image, stored in the

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mind, as of engaging perceptually with an environment that is itself pregnant with the past.20

To inhabit a landscape is to dwell among memories, both individual and collective. It is to feel the past thrumming through the present, alive in the material world.21 Much of this past is religious, whether we like it or not, including a past that shapes the concept of materiality itself. For those who feel at home in this world of embodied memory, life is good. Landscape is a seamless extension of identity. It is a story in which “we” play a natural part. But for those who do not feel at home—for strangers, outsiders, and aliens—landscape is a story of estrangement, of not-­belonging. Ask a black student as she walks across campus at a historically white college. Ask a gay father as he cheers on the sidelines of his son’s football game. Ask an atheist gritting her teeth through prayers at a town meeting. They, too, dwell in a landscape of living memory, a landscape “pregnant with the past.” It is hard to make legal sense of this kind of geographical experience. There is no ready legal language for the material agency of landscape, its capacity to “interpellate the subject,” call him into being.22 Recall the hesitant, almost fumbling words of one of my interviewees, a highly educated and extremely articulate civil rights attorney: The Ten Commandments—it is more than a religious symbol, and it’s somehow other than a set of doctrines. It is ten things . . . . When it’s sitting in the form of a public display by itself, it’s something other than a religious document, something other than a symbol. I’m not sure what exactly the right language for talking about it is. But . . . it is speech in a very real sense. It’s a declaration. And this is why it’s offensive in a special way. . . . It’s a declaration of who we are and who you are not.

“Things” are not words or symbols. They “speak,” but not in a language we can easily translate. They can cause pain and offense, but we cannot say quite how, at least not in ways that legal discourse can easily assimilate. Yet this ineffability is not universal. After all, Hopi religious practitioners do not seem confused about the material agency of objects on the San Francisco Peaks. Many Catholics do not seem confused about the healing powers of shrines or the protective force of holy water. So why is it so hard to explain not just what a monument means, but even what it is? Part of the blame must be laid at the door of prot-



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estant secularity. To acknowledge that “things” possess this kind of material agency is to threaten the very category of belief on which protestant traditions of religious freedom so clearly rest. It is to insist on the vulnerability of our innermost self to forces from the outside world. This is one reason why so many secularists look askance on sacred space. Of course, looking askance is one thing; trying to conceal or destroy is quite another. By relentlessly stressing the dangers of idolatry, does secularism deny the possibility of making sacred landscapes that are inclusive, democratic as well as public? Durkheimian progressives like Robert Bellah have long worried over this kind of question. Without “sacred centers” of civil religion, many if not most of which are cloaked in Christian symbolism, how can civil society construct a universal sense of moral solidarity? Can democracy do without its sacred civic landscapes? Consider a recent case of what many Americans saw as secular overreach. Two days after the destruction of the World Trade Center on September 11, 2001, workers sifting through the rubble found conjoined steel beams in the shape of a Latin cross. They erected the cross at the site of the disaster, and in the weeks and months that followed it “became an icon of hope and comfort” to recovery workers.23 Religious services and remembrances were held at its foot. Word of its appearance spread throughout the country. It remained as a shrine and tourist attraction until 2006, when it was moved to Saint Peter’s Church in lower Manhattan (fig. 8). Over time, replicas of the cross had proliferated, becoming a common emblem of remembrance. A reproduction was erected at the grave of Father Mychal Judge, the Fire Department chaplain and folk hero killed by the South Tower’s collapse. Mementos and rosaries were sold near Ground Zero. A documentary by conservative Christian filmmakers, The Cross and the Towers, was released in 2006 and became a hit with evangelical audiences. A video for the song “There She Stands” by the Christian pop star Michael W. Smith juxtaposed images of the cross with the towers and the American flag.24 Smith performed the song at the 2004 Republican National Convention. A tattoo artist who gave free tattoos at Ground Zero guessed that he etched at least a thousand crosses on the bodies of recovery workers in the weeks after the attacks.25 Then, in 2011, the cross was moved to the site of the National September 11 Memorial and Museum, where it was to be displayed in the permanent collection. American Atheists quickly sued. Plaintiffs Dennis Horvitz and Kenneth Bronstein, who identified in their legal complaint as “Atheists reared in the Jew-

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Figure 8. The Ground Zero Cross. Photo by author.

ish tradition,” said they found the cross “offensive and repugnant to their beliefs, culture, and traditions” and claimed that “the symbol marginalizes them as American citizens.” Plaintiff Jane Everhart called the cross “an insult to every non-­Christian survivor of that attack.” Plaintiff Mark Panzarino, whose brother died of lung disease after serving as a first responder at Ground Zero, said he did not want a cross to honor his brother’s sacrifice “unless it is a Lutheran Cross.”26 In March 2013 Judge Deborah A. Batts dismissed their case, describing the museum display as “historical and secular” and claiming that “no reasonable observer would view the artifact as endorsing Christianity.”27 On appeal, American Atheists narrowed their claim, arguing that the museum violated the Constitution by failing to acknowledge, either literally or symbolically,



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that atheists died in the attacks or helped with recovery efforts. In 2014 their challenge was denied. At the museum, the cross is housed in a section called “Finding Meaning at Ground Zero.” It is accompanied by a panel that reads: Workers at Ground Zero struggled to come to terms with the horrific circumstances in which they found themselves. Some sought to counter the sense of utter destruction by holding on to something recognizable, whether a metal bolt or shard of glass or a marble salvaged from the debris. Others, grappling with the absence of survivors and the regular recovery of human remains, found purpose by forging relationships with relatives of a particular victim, carrying a photograph or memorial card to bolster their resolve. Some questioned how such a crime could have been perpetrated in the name of religion, and wrestled with how a benevolent god would permit the slaughter of thousands of innocent people. Many sought comfort in spiritual counseling, religious symbols, and the solace of ceremonies and ritual.

Anything but an icon of Christian imperialism, this cross is framed as an attempt to fill the profane absence of death with a sacred, material presence. This tradition of memorialization has real social and political value apart from its psychological and spiritual significance for individual victims.28 As anyone living in New York after 9/11 can attest, the cross was just an especially durable part of a deeply meaningful materialization of trauma that unfolded (and continues to unfold) across the entire city, not only at Ground Zero. Linking the Fresh Kills landfill to photographs on fire station walls and streetcorner shrines, this network of objects, images, and rituals was woven into the spatial fabric of New York and beyond, an extremely complicated configuration of visual and material culture, memory and emotion, secular and religious place-­making. Other scholars have explored this story with far more nuance and insight than I can offer here.29 I merely want to draw attention to the ways in which law can reduce the richness and complexity of sacred space to a game of signs. My point is not that the culture of post-­9/11 memorialization is above reproach. Memorialization can always be co-­opted in cynical and undemocratic ways. But this does not mean that this specific cross—the material object displayed in this specific context—threatens religious freedom or religious pluralism by appearing in a museum. Its poetics and politics are fundamentally different from, say, the infamous anti-­Islamic demonstrations against the so-­called Ground

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Zero mosque planned just blocks from the museum. They should not be conflated. Yet through its relentless flattening of meaning and erasure of context, law makes it far too easy to do just that. Between the fact of diversity and the norm of pluralism lies the fractured terrain of American secularity. Immigrants, indigenes, and homegrown religious innovators have continually expanded and contracted this terrain, dismantling and rebuilding the boundaries between civil and uncivil religions. What was unforgivable heresy yesterday is conventional piety today. Catholics, Jews, and Mormons—just to name three of the most significant religious outsiders to become incorporated into the civil sphere (symbolically, at least)— have all taken this rough journey from periphery to center. As social observers have long recognized, the price can be steep. To become fully “civil,” religious groups have had to conform to protestant cultural norms, including what Cuddihy called “niceness” (see chapter 2). Yet while it is true that the American state is sometimes eager to regulate “unruly” or “deviant” religions, the ideology of anti-­authoritarian, negative religious liberty runs far too deep for what Martin Marty once called “utter secularity” to take enduring hold.30 We should probably worry more about the law of religious freedom, especially laws like RFRA, being used to disguise dominant religious groups as persecuted outsiders. When freedom of conscience is unquestionably sacrosanct, claiming spiritual victimization is a good way to hold onto power. Although Americans commonly decry the divisiveness of religious litigation, law may therefore perform an important social function. By dramatizing the ceaseless struggle to delineate the religious and the secular, courts call attention to the religious politics of everyday life. They make us question what is unremarkable and invisible. And what is more unremarkable or invisible than place? By staging a struggle over the proper relationship between subjects and signs, observers and icons, law provides a set of performative resources for making, unmaking, and interpreting place in ways that powerfully dramatize the relationship between citizenship and religious subjectivity. It supplies a moral grammar for practices of inclusion and exclusion, and it furnishes a language of civil and uncivil motives for displays of religious and secular belief. This may be culturally polarizing, but it is surely preferable to the silence of hegemony. Law can be a powerful vehicle for expressing aversive emotions, and such emotions can play an important role in expanding democracy. In an insightful essay, the political theorist Patchen Markell argues that many of us have



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privileged the role of presumptively positive emotions such as love, loyalty, and pride. We have also overemphasized so-­called centered affects, he argues—­ affects directed toward a unitary object such as the nation, the republic, the Constitution. We have thus neglect the political value of emotions such as shame, anger, and disgust, as well as the value of “decentered” affects—affects directed against expressions of identity with imagined entities such as “the republic” or “the people.” Or, I would add, “the land.” Secularism displaces the sacred. It cannot destroy it. Its displacements can be painful, not only because they force us to confront the profound challenges of religious diversity, but also because they require us to rebuild the physical environment of civil society. Public places must be materially remade to reflect a new religious climate. Landscapes must be rewritten. This can hurt. After all, the story of landscape is always, for someone, the story of home.

Acknowledgments

This book could not have been written without the unfailing support of Catherine Newman Howe, who has been the best of partners, colleagues, editors, and collaborators since we met on the Low Library steps in 1997. If there is anything worth reading here, it is thanks to her. Nicholas Entrikin guided this project from the start, always giving just the right advice at just the right time. With John Agnew, Michael Curry, and the late Denis Cosgrove, Nick taught me not just how to think geographically, but how to think clearly. If there are any ideas worth remembering here, it is thanks to them. A number of individuals gave invaluable feedback on different portions of this book at different points in its long evolution: Lawrence Buell, David Cassuto, Veronica della Dorra, Cathy Gudis, David Lowenthal, Sarah Luria, Heather Houser, Peter Just, Neil Maher, Kirstie McClure, Kathy Morse, Cindy Ott, Christopher Robinson, Aaron Sachs, Kiara Vigil, William Vitek, and Justin Wilford. Without their generous help, this book would have never come together. Two anonymous reviewers commented on the entire manuscript, and I’m 167

168 Acknowledgments

sorry that I cannot thank them personally for their extremely helpful engagement with my writing. My colleagues at Williams College have provided me with all the moral, intellectual, and practical support an assistant professor could need: Ralph Bradburd, Michael Brown, Jennifer French, Peter Just, Pia Kohler, Karen Merrill, James Nolan, and Mérida Rúa, in particular. My colleagues at Harvard’s Charles Warren Center for Studies in American History, where much of this book was written, gave me a crash course in both environmental history and collegiality. Many thanks to Lawrence Buell, Joyce Chaplin, Cathy Gudis, Robin Kelsey, Larissa Kennedy, Sarah Luria, Neil Maher, Kathy Morse, Cindy Ott, Arthur Patton-­Hock, and Aaron Sachs for making my time at Harvard so fruitful. My colleagues and counselors at the Yale Center for Cultural Sociology, Jeffrey Alexander and Philip Smith, connected me to their vibrant scholarly community, which has been a source of constant intellectual nourishment since the seeds of this book were planted over ten years ago. I am especially indebted to Phil for patiently teaching me how books are written. Early research for this book was generously funded by fellowships from the National Science Foundation and the Charlotte W. Newcombe Foundation. Portions of this research have been presented in several places, including annual meetings of the Association of American Geographers and American Studies Association; the Getty Research Center; an NSF workshop on Constitutional Geographies; the Yale Center for Cultural Sociology; and the Charles Warren Center at Harvard. I am grateful for the thoughtful feedback of my interlocutors at these events, especially Irus Braverman, Joshua Comaroff, David Delaney, Benjamin Forest, and Banu Gökarıksel. My editor, Timothy Mennel, gave me encouragement and direction just when I needed them. I heartily thank Tim, Rachel Kelly, and their colleagues at the University of Chicago Press for their hard work and care. My sincere thanks also to Therese Boyd for her expert copy editing. For their honesty, patience, and sincerity, I thank the people who I interviewed for chapter 2, and whose words resonated for me throughout the writing of this book. You welcomed me into your neighborhoods, offices, and homes, and you were unfailingly civil to this nosy researcher. My parents, Jim and June Howe, fostered my love of landscape and taught me how to find beauty in everyday life. My daughters, Josephine and Lillian Howe, taught me how to laugh. I dedicate this book to them.

Notes

PREFACE

1. For these facts and others about the cross, I rely primarily on publicly available court records. See Buono v. Norton, No. EDCV 01-­216 RT (SGLx), 2002 U.S. Dist. LEXIS 13634 (C.D. Cal. July 24, 2002). For a succinct overview of the case that also relies on the public record, see Butler, “When Nowhere Becomes Sacred.” The National Parks Service commissioned a historical study of the cross which was used as a factual basis for litigation. For another helpful discussion of the case by a prominent expert on law and religion, see Sullivan, “The Cross.” 2. Curwen, “A Mojave Desert Cross Brings a Lot of Things to Bear.” 3. Barnes, “For Couple, Memorial Became a Mission.” 4. Curwen, “Mojave Desert Cross.” 5. Braunstein, “Taking Offense,” B1. 6. Buono v. Norton, 212 F. Supp. 2d 1202, 1211, 1207 (Dist. Court, C.D. Cal. 2002). 7. Buono v. Kempthorne, 527 F. 3d 758, 765 (Court of Appeals, 9th Circuit 2008). 8. Donovan, “Mojave Cross War Memorial Gains Support.” 9. Salazar v. Buono, 130 S. Ct. 1803 (Supreme Court 2010). For moderately technical discussions of the legal issues surrounding the case, see Bartrum, “Salazar V. Buono”; Dolan, “The Cross National Memorial”; Linkner, “How Salazar V. Buono Synthesizes the Supreme Court’s Establishment 169

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Clause Precedent”; Lund, “Salazar v. Buono and the Future of the Establishment Clause.” For a broader constitutional contextualization of the case, see DeGirolami, Tragedy of Religious Freedom, 121–144. 10. Ibid., 15. The term “spiritual injury” was used on page 13 of the Justice Department’s original petition to the Supreme Court for a writ of certiorari, authored by then–­ Solicitor General Gregory Garre. This document is available on the Justice Department website at http://​www​.justice​.gov​/osg​/ briefs​/2008​/2pet​/7pet​/2008​-­0472​.pet​.aa​.html. 11. O’Brien, “Mojave Cross.” 12. Ibid. 13. Ibid. 14. Respondent’s Brief, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 657, 35–36, 41. 15. Brief for the American Legion Department of California as Amicus Curiae Supporting Petitioners, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 432, 3. 16. Brief for the Fidelis Center for Law and Policy and Catholicvote​.org as Amici Curiae Supporting Petitioners, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 423, 14. 17. Brief for the States of Indiana, Alabama, Alaska, Colorado, Florida, Idaho, Louisiana, Michigan, South Carolina, Texas, and Utah as Amici Curiae Supporting Petitioners, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 438. 18. Brief for the American Legion Department of California as Amicus Curiae Supporting Petitioners, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 432, 13. 19. Brief for the Veterans of Foreign Wars of the United States, the American Legion, Military Order of the Purple Heart, VFW Department of California, American Ex-­Prisoners of War, VFW Post 385, and Lieutenant Colonel Allen R. Miliefsky United States Air Force (Retired) as Amici Curiae Supporting Petitioners, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 464, 14. 20. Brief forAmericans United for Separation of Church and State, Anti-­Defamation League, Jewish Council for Public Affairs, Military Religious Freedom Foundation, North American South Asian Bar Association, People for the American Way Foundation, and Union for Reform Judaism as Amici Curiae Supporting Respondent, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 673, 2. 21. Ibid., 12, 18, 24–25, 35. 22. Brief for the Jewish Social Policy Action Network as Amicus Curiae Supporting Respondent, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 669, 6 (emphasis added). 23. Brief for Jewish War Veterans of the United States Of America, Inc. as Amicus Curiae Supporting Respondent, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 667, 15. 24. Brief for the Jewish Social Policy Action Network as Amicus Curiae Supporting Respondent, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 669, 14. 25. Brief for the Center for Inquiry as Amicus Curiae Supporting Respondent, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 674, 1. 26. Brief for American Jewish Congress and American Jewish Committee as Amici Curiae Supporting Respondent, Salazar v. Buono, 2009 U.S. S. Ct. Briefs LEXIS 672. 27. Salazar v. Buono, 130 S. Ct. 1803, 1816, 1818, 1820 (Supreme Court 2010). 28. Ibid., 1824–28, 1835.



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29. See, for example, Fish, “When Is a Cross a Cross?” 30. Lithwick, “Crossing Over.” 31. Archibold, “Cross at Center of Legal Dispute Disappears”; Jablon, “Disputed Mojave Cross Honoring US War Dead Stolen.” 32. Liberty Institute, “War Memorial Torn Down by Vandals.” 33. Desert Dispatch, “Anonymous Letter Explaining Cross Theft Sent.” 34. Louie, “Missing Mojave Cross Found in San Mateo Co.” 35. The Press-­Enterprise, “Vandalized and Litigated Mojave Cross Rises Again,” November 12, 2012, YouTube​.com, http://​www​.youtube​.com​/watch​?v​=​1vrFUbqVC fU​&​feature​=​youtube​_gdata​_player. CHAPTER 1

1. The phrase “dramas of vision” comes from the art historian Rachel Ziady DeLue, who uses it to characterize aesthetic ambivalence in nineteenth-­century landscape writing. DeLue and Elkins, eds., Landscape Theory, 9–10. In my use of the term, I deliberately invoke Victor Turner’s classic theory of social drama, which is the subject of a very large critical literature. For a synthesis of this literature and updating of Turner’s theory, see Smith and Howe, Climate Change as Social Drama. 2. On the history of religious activism in postwar constitutional law, see Gordon, The Spirit of the Law. For a historically informed defense of religious liberalism in church-­ state relations, see Shiffrin, The Religious Left and Church-­State Relations. On conservative Christian legal activism, see Hacker, The Culture of Conservative Christian Litigation; Moore, Suing for America’s Soul. 3. On the complex relationship between place and landscape in modern geographical thought, see Casey, Representing Place; Malpas, ed., The Place of Landscape; Olwig, Landscape, Nature, and the Body Politic. 4. On Thoreau as a religious thinker, see Hodder, Thoreau’s Ecstatic Witness. On his struggle to reconcile a distinctly anti-­Protestant faith in the sacramental immanence of sacred place with his more traditional faith in spiritual transcendence, see Gatta, Making Nature Sacred, 127–42. On Thoreau as a cultic figure and Walden as a place of secular pilgrimage, see Buell, The Environmental Imagination. 5. I am well aware of the dangers involved in labeling any way of thinking as essentially “Protestant” given the internal heterogeneity and porous boundaries of this global religious tradition. Following the example of the law and religion scholar Winnifred Fallers Sullivan, whose work comprises one of the cornerstones of this book, I use the lowercase p to signify a shifting constellation of political ideas and cultural beliefs regarding the practice of religion that emerged in early modern Europe and that have exerted an especially strong influence on American political and legal institutions, among many other domains of social life. When referring to specific religious actors and institutions commonly recognized as belonging to this tradition, however, I retain the capital P. See Sullivan, Impossibility of Religious Freedom, 7–8. 6. Cosgrove, Social Formation and Symbolic Landscape, 1. See also Cosgrove, “Prospect, Perspective and the Evolution of the Landscape Idea.” Berger, Ways of Seeing; Williams, Country and the City.

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7. Cosgrove, Social Formation, xvii. 8. On landscape and colonialism, see, e.g., Cronon, Changes in the Land; Duncan, In the Shadows of the Tropics; Zarobell, Empire of Landscape; Nally, Human Encumbrances. On landscape and gender relations, see, e.g., Rose, Feminism and Geography; Nash, “Reclaiming Vision”; Bondi, “Gender Symbols and Urban Landscapes.” On landscape and national identity, see, e.g., Daniels, Fields of Vision; Matless, Landscape and Englishness; Miller, Empire of the Eye; Novak, Nature and Culture. On landscape, social class, and commodification, see, e.g., Barrell, The Dark Side of the Landscape; Bermingham, Landscape and Ideology; Duncan and Duncan, Landscapes of Privilege; Mitchell, Lie of the Land. On landscape and environmental thought, see, e.g., Blackbourn, Conquest of Nature; Braun, Intemperate Rainforest. On landscape and social memory, see, e.g., Schama, Landscape and Memory; Basso, Wisdom Sits in Places; Foote, Shadowed Ground. For useful if unsympathetic overviews of key works on landscape iconography, see Wylie, Landscape; Wylie and Rose, “Landscape—Part II.” 9. Mitchell, ed., Landscape and Power, 1. Recent trends in landscape theory have pushed strongly against the tradition of visual critique associated with Cosgrove, Mitchell, and others. Coming from a range of theoretical positions—phenomenology, nonrepresentational theory, and “new” materialism in particular—many geographers and anthropologists (in particular) deny that landscape is an intrinsically visual or pictorial concept. I address their arguments in numerous places throughout this book. For now, it should suffice to say that one of my primary aims is to show that the iconographic/representationalist tradition sheds valuable light on precisely the kinds of questions it is claimed to obscure, especially questions of embodiment, affect, and materiality. It is to show, moreover, that a whole series of dualisms that scholars imagine to divide landscape theory—representation/practice, image/thing, reason/affect, and so on—are in fact products of a theologically inflected semiotic ideology, one not at all confined to academic theorizing about landscape. For a concise overview of these debates, see Wylie, Landscape. 10. Since the late nineteenth century, when German scholars popularized the scientific study of landscape, or Landschaftskunde, many European and American academics have argued that the concept is too fuzzy and subjective for scientific usage. Although these criticisms have rarely taken the form of direct religious critique, they have traditionally drawn heavily on terms of secularist opprobrium, especially “mysticism.” Parts of this history can be found in Cosgrove, Social Formation and Symbolic Landscape; Howe, “Landscape Versus Region”; Livingstone, Geographical Tradition; Martin, All Possible Worlds. 11. See, for example, Bender, New Metaphysicals; Modern, Secularism in Antebellum America; Schmidt, Restless Souls. 12. There is a large literature on the social construction of “religion” and related terms such as “the sacred.” Following scholars such as Talal Asad, David Chidester, and Tomoko Masuzawa, this literature has taken a sharply political turn in recent decades, framing “religion” as a form of epistemic violence inflicted by Christian societies on a range of internal and external Others. Slowly but surely, geographers of religion have caught this scholarly wave. Still, there has been almost no exchange of ideas between this



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newly critical subfield of human geography and mainstream landscape studies. Within landscape theory, religion is still dramatically undertheorized. Within the sociospatial study of religion, the same can be said of landscape. See, for example, Hopkins, Religion and Place; Knott, “Spatial Theory and the Study of Religion”; Tweed, Crossing and Dwelling. On religious discourse as a political project, see, e.g., Arnal and McCutcheon, Sacred Is the Profane; Asad, Genealogies of Religion; Chidester, Savage Systems; Masuzawa, Invention of World Religions. For strong ethnographic evidence suggesting that a much wider range of “moods and motivations” attend the creation of sacred landscapes than Christian tradition would suggest, see the contributions to the special issue of Anthropological Forum on “Spiritual Landscapes of Southeast Asia,” 19, no. 3 (2009). 13. Warner, “Ruse of Secular Humanism.” Critical reflection on secularization has a long pedigree in Western social thought, but I refer here to a body of cultural analysis inaugurated in the 1990s by scholars suspicious of secularization theory’s ideological underpinnings. Key works include Asad, Formations of the Secular; Bhargava, Secularism and Its Critics; Connolly, Why I Am Not a Secularist. In the wake of Charles Taylor’s sprawling philosophical opus, A Secular Age, the cultural study of secularism/secularity/ secularization has developed into an energetic transdisciplinary venture. Not surprisingly, given cultural geography’s longstanding association with the field, I am particularly concerned with the input of cultural anthropologists and their interlocutors. After Asad’s seminal work, important contributions include Agrama, Questioning Secularism; Navaro-­ Yashin, Faces of the State; Özyürek, Nostalgia for the Modern; Scott and Hirschkind, Powers of the Secular Modern; Mahmood, Politics of Piety. Important edited collections that bring together scholars from a variety fields include Cady and Hurd, eds., Comparative Secularisms in a Global Age; Calhoun, Juergensmeyer, and VanAntwerpen, Rethinking Secularism; Gorski et al., eds., The Post-­Secular in Question; Jakobsen and Pellegrini, eds., Secularisms; Warner, VanAntwerpen, and Calhoun, Varieties of Secularism in a Secular Age. 14. Agrama, Questioning Secularism, 1, 33. 15. Howe, “Secular Iconoclasm”; Casanova, “The Secular and Secularisms”; Cady and Hurd, eds., Comparative Secularisms in a Global Age; Jakobsen and Pellegrini, eds., Secularisms. 16. Fessenden, Culture and Redemption, passim. 17. On the religious dimensions of environmental politics, see Dunlap, Faith in Nature; Lowenthal, “Eden, Earth Day, and Ecology”; Stoll, Protestantism, Capitalism, and Nature in America; Taylor, Dark Green Religion. 18. Taylor, Secular Age, 300. 19. Hutchison, Religious Pluralism in America, 4–5. 20. The most influential statement of this position can be found in the programmatic introduction to David Chidester and Edward Linenthal’s edited volume, American Sacred Space. Although I take strong issue in this book with their heavy reliance on critical sociospatial theory, especially their reduction of spatial sacralization to social power, I owe a major intellectual debt to their reconceptualization of sacred space in America. Twenty years later, it is still the best book on this subject. 21. Herberg, Protestant–­Catholic–­Jew, 232. As legal historians have clearly shown— and as Herberg half-­acknowledged—until the early twentieth century most of these

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“tensions” in fact consisted of marginalized or oppressed religious minorities, especially Catholics, struggling against an entrenched Protestant majority, or what the historian David Sehat calls the “moral establishment.” See Sehat, Myth of American Religious Freedom; Hamburger, Separation of Church and State; Handy, Undermined Establishment. 22. Sullivan, Impossibility of Religious Freedom. The French political scientist Olivier Roy calls this the “formatting” of religion in Holy Ignorance, 187–213. 23. See, most famously, Neuhaus, Naked Public Square. 24. Agrama, Questioning Secularism; Sullivan, Yelle, and Taussig-­Rubbo, eds., After Secular Law; Sullivan, Impossibility of Religious Freedom. 25. Sullivan, “Religion Naturalized,” 84. 26. The phrase comes from the geographer Kenneth Olwig, whose research on the coproduction of law and landscape has strongly shaped my argument in this book. On landscape and legality, see especially Olwig’s Landscape, Nature, and the Body Politic, “Law, Policy and the Changing Meaning of Landscape,” and “The Landscape of ‘Customary’ Law versus that of ‘Natural’ Law”; Braverman, “Hidden in Plain View”; Blomley’s “Landscapes of Property” and “Cuts, Flows, and the Geographies of Property”; Delaney, “Seeing Seeing Seeing the Legal Landscape”; Braverman, Planted Flags. Also see the special issue of Norsk Geografisk Tidsskrift on “Landscape, Law, and Justice,” 60, no. 1 (2006). The subfield of critical legal geography has long been strongly oriented toward the study of space and territory, but landscape and place have not escaped the attention of its leading theoretician, David Delaney. For an invaluable synthesis, see Delaney, The Spatial, the Legal and the Pragmatics of World-­Making, 25. 27. On the duplicity of landscape, see Daniels, “Marxism, Culture and the Duplicity of Landscape.” 28. Legal commentators on the Right and Left frequently complain that “public religious displays” and other matters of ritual and symbolism are trivial and divisive distractions from “real” questions of church-­state entanglement, such as public funding for religious institutions. See, for example, Feldman, Divided by God. 29. Agnew, “Religion and Geopolitics.” 30. On the largely Protestant roots of this tradition and its distinctive orientation toward landscape, see Stoll, Inherit the Holy Mountain. 31. On the shift to seeker spirituality in American religious life, see Wuthnow, After Heaven. On the role of sacred space in New Age and earth spirituality movements, see Ivakhiv, Claiming Sacred Ground. 32. Tuan, “Geopiety,” 12–13. 33. Dijkink, “When Geopolitics and Religion Fuse,” 194. 34. On the cottage, see Bourdieu, The Political Ontology of Martin Heidegger. On the monument, see Schama, Landscape and Memory, 385–446. 35. Cronon, “Trouble with Wilderness,” 76, 80. 36. Weber, “Wissenschaft als Beruf.” This translation of the most famous passage in “Science as a Vocation” (1919) is by Robert J. Richards and appears in his essay, “Darwinian Enchantment,” 183. 37. As the geo-­theologian Belden Lane puts it, “For the mass of twentieth-­century Americans the landscape remains mute, its mystery unavailable to the modern spirit.



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Since Descartes and the Enlightenment, we no longer attribute numinous power to the landscape.” Lane, Landscapes of the Sacred, 190. 38. Taylor, “Disenchantment-­Reenchantment,” 57. 39. Taylor, Secular Age, 38. 40. See Bruce Robbins’s brilliant analysis in “Enchantment?” 41. On this ontology of invocation, see Taylor, “Western Secularity,” 51. 42. White, “Historical Roots of Our Ecologic Crisis,” 1206. 43. Lane, Landscapes of the Sacred, 19. 44. I refer here to Jonathan Z. Smith’s well-­known distinction between “locative” and “utopian” religions. See his Map Is Not Territory. 45. On the Protestant origins of much mainstream environmental thought, see Stoll, Protestantism, Capitalism, and Nature in America. Also see Lane, Ravished by Beauty. 46. Walsham, Reformation of the Landscape, 2, 82, 83, 93. 47. Eire, War against the Idols. 48. Ibid., 197–98, 206–7, 216. 49. Taylor, After God, 71. 50. Santmire, Travail of Nature. 51. Walsham, Reformation of the Landscape, 150. 52. As the ecocritic John Gatta explains, “To regard the world as sacramental is to believe that spirit reveals itself through rather than despite materiality.” In Thoreau, the religiously musical Gatta sees a deep tension between “the more ritualized traditions of Christianity, according to which the sacred can be physically connected to sanctified space,” and the iconoclastic Protestant impulse to resist “any attempt to confine movements of the spirit within a given location.” Gatta, Making Nature Sacred, 141. 53. Walsham, Reformation of the Landscape, 566. 54. Ibid., 239, 240–43, 566. 55. See Albanese, Nature Religion in America, 96. On the fascinating history of sacred groves in America and their use for revivals, see Jackson, “Sacred Grove in America.” 56. Morgan, Embodied Eye, 166, 167, 169, 173, 178. On the visual culture of American civil religion with emphasis on Protestant attempts to consolidate national identity, see Morgan, Sacred Gaze, 220–55. 57. Modern, Secularism in Antebellum America, 124. 58. “True religion,” as it was referred to across the Protestant spectrum at mid-­ century, was grounded deep within the self. Belief in turn was conceived of as a choice rather than obligation, the cause of practice rather than the effect. Moreover, belief was an epistemic virtue. . . . In becoming the object of increasingly systematic attention, religion was bound up with seeing the world clearly, with knowing the self knowing it without mediation. Piety not only corresponded to divine script but was also the means of revealing essential principles of the human—reason coherency, and legibility. . . . [Thus] religion, at its best, is the exercise of one’s freedom in private that is also beneficial to the public sphere. At its worst, religion is untrue—a perversion of consciousness and/or a scheme of social control.” Ibid., 5. 59. Howe, “Secular Iconoclasm.” 60. Mitchell, “Idolatry,” 59 (emphasis added).

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61. Latour, We Have Never Been Modern. 62. Keane, “Signs Are Not the Garb of Meaning,” 191. 63. Keane, Christian Moderns, 14. 64. Ibid., 20–21. On the subtle differences between the fetish and the idol, see Pietz, “The Problem of the Fetish, I”; “The Problem of the Fetish, II”; “The Problem of the Fetish, IIIa.” For a cross-­cultural perspective on iconoclasm, see Goody, Representations and Contradictions. 65. On Protestant struggles with materiality in other cultural contexts, see Engelke, Problem of Presence; Houtman and Meyer, eds., Things; Keane, “Evidence of the Senses and the Materiality of Religion”; McDannell, Material Christianity; Griffith, Born Again Bodies. 66. Keane, Christian Moderns, 590. 67. Connolly, Why I Am Not a Secularist. 68. Cosgrove, “Modernity, Community and the Landscape Idea,” 50. 69. Olwig, Landscape, Nature, and the Body Politic. 70. Cavell, Cities of Words, 23. 71. On the cultural and geographical diversity of secularization and secularism, see Berger, Davie, and Fokas, Religious America, Secular Europe?; Cady and Hurd, eds., Comparative Secularisms in a Global Age; Casanova, “The Secular and Secularisms”; Jakobsen and Pellegrini, eds., Secularisms; Bhargava, “Multiple Secularisms and Multiple Secular States”; Warner, VanAntwerpen, and Calhoun, Varieties of Secularism in a Secular Age. 72. Some scholars go considerably farther in seeing protestant culture at work in Anglo-­American legal traditions. For example, the legal scholar Costas Douzinas and art historian Lynda Nead argue that the entire common law is rooted in Protestant iconophobia. “The force of the common law is based on the celebration of spiritual community, social unity, and political sovereignty and the complementary exclusion of materiality and sensuality, of enemies without and within—the Romanists and the French, the Egyptians and the Jews, itinerants, idolaters, and witches. This strategy of inclusion and excommunication is organized around an order of acceptable and forbidden images, of icons and idols, of spiritual likenesses and false figures that, Medusa-­like, can both fascinate and petrify.” Douzinas and Nead, “Introduction,” 8. 73. Alexander, “Cultural Pragmatics.” 74. In an important essay on the French veiling controversy, the anthropologist Talal Asad frames this defense of laïcité as a defense of sacred space. According to Asad, secularism’s “theology of signs” serves to guard the purity of places sacred to the Republic (public schools, most notably) against the dangerous, polluting influence of religious symbols, especially those symbols, like the veil, that supposedly undermine the autonomy that properly belongs to rational, rights-­bearing citizens. Banning the veil from these sacred places, he claims, is “an exercise in sovereign power, an attempt by a centralized state to dominate public space as the space of particular signs.” It is thus to define the religious symbol itself as a potential danger to democracy. The point is to produce a citizen with a distinctively secular character, one who is “tolerant,” “free,” and “independent,” yet at the same time fiercely devoted to the nation-­state. Schools are especially important in this regard because they are where properly laïque citizens



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are formed, where a child learns what is “real” (i.e., rights, equality, personal freedom) and what is “fantasy” (i.e., religion, at least in its more “barbaric” forms). Inducted into the mysteries of secularism, she learns to recognize herself as particular kind of self, to embody a particular “structure of emotions.” Most important, if she is Muslim, she learns to recognize the headscarf as a “displaceable sign” belonging to the profane spaces of private life, not an ineluctable aspect of Muslim personhood. “Like other modes of secularism,” Asad concludes, “laïcité is a modern form of political rule that seeks to define a particular kind of secular subject (whether ‘religious’ or not) who can take part in the game of symbols—the right kind of conventional signs—to demonstrate his or her loyalty to the state.” The state’s “performance of sovereignty,” in other words, demands that religion be put in its proper, subordinate place. Asad, “Trying to Understand French Secularism,” 500–501, 507, 521, 525. 75. As Martha Nussbaum argues, “Our tradition has wisely seen that coercive assimilation involves a threat to conscience. By now we have deeply internalized this idea, so that it would seem to most Americans weird and tyrannical to tell someone that they can’t dress in a different way, or observe other commandments of their religion— in the absence of a compelling state interest.” There is a grain of truth to this, although many historians would scoff at the notion of “our tradition” bans “coercive assimilation.” What Nussbaum is noticing is rather more specific: that the religious body, in modern America, is typically seen as a sacrosanct. But as cases like Lyng clearly illustrate, the same cannot be said for religious space. Nussbaum, Liberty of Conscience, 348. 76. For a vivid exploration of the landscape/religious territory nexus, see Braverman, Planted Flags. 77. All three landscapes have been convincingly likened to sacred space. See Ross-­ Bryant, Pilgrimage to the National Parks; Moreton, To Serve God and Wal-­Mart; Steinberg, American Green. 78. I should note that Lawrence Buell deftly contradicts this facile (though dominant) interpretation of Katharine Lee Bates’s famous hymn. See Buell, Writing for an Endangered World, 9–15. CHAPTER 2

1. Pfeffer was involved in more than half of the Establishment Clause cases heard by the Supreme Court from the 1940s through the 1980s, according to Vile, Great American Lawyers, 561. Political scientist Gregg Ivers, an authority on Jewish involvement in church-­state issues, calls Pfeffer the Jewish community’s “chief strategist” on church-­ state issues and “beyond doubt the most dominant and influential advocate of his generation (and quite possibly of all time) in the field of church-­state law.” See Ivers, To Build a Wall, 97, 193. 2. Quoted in the opinion of Judge Frank H. Coyne, J., 14 Misc. 2d 956. 3. Affidavit of Rabbi Emanuel Rackman, in the Leo Pfeffer Papers, Syracuse University, 3, 4. 4. Affidavits of Rabbi Israel Goldstein and Isidor Chein, Pfeffer Papers. 5. Letter to Victor Harris, November 30, 1956, Pfeffer Papers. 6. Memo to Sam Caplan, Pfeffer Papers.

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7. Baer v. Kolmorgen, 14 Misc. 2d 955, 956–57 (Supreme Court, Westchester 1957). This passage has become something of a rallying cry for Christian Right activists seeking to construct a prophetic lineage for their antisecularist legal philosophy. 8. Baer v. Kolmorgen, 14 Misc. 2d 1015, 1016 (Supreme Court 1958). 9. Ibid., 1021. 10. Letter from Eleanor Cornell, May 3, 1959, Pfeffer Papers. 11. Sullivan, Paying the Words Extra. 12. Pfeffer, Church, State, and Freedom, 402–5. 13. Pfeffer’s separationist activism often brought him into conflict with Christian leaders. He had an especially tense relationship with conservative Catholics. Responding to allegations of an anti-­Catholic agenda in the liberal Catholic journal Commonweal, Pfeffer tellingly wrote, “I did not like the Catholic Church as I did not like the military and the South, and for pretty much the same reasons.” These institutions, he explained, were “monolithic and authoritarian and big and frighteningly powerful.” Pfeffer, “The ‘Catholic’ Catholic Problem,” 302, 303. 14. “A New Religion in America,” editor’s note from the American Jewish Congress (AJC), delivered to AJC women’s division, May 10, 1957. The final comment on combatting secularism was included in address to Protestants and other Americans United for the Separation of Church and State conference, Washington DC, January 27, 1949, Pfeffer Papers. 15. Address to joint conference on Religious Holiday Observances in the Public Schools held by National Community Relations Advisory Council and Synagogue Council of America, New Yorker Hotel, September 13, 1949, Pfeffer Papers. 16. Memorandum on illegality of display of religious symbols on public property, Commission on Law and Social Action of the American Jewish Congress, coauthored with Phil Baum, December 12, 1957, Pfeffer Papers. 17. Memorandum on the display of Ten Commandments in schools, May 15, 1957, Pfeffer Papers. 18. “Indifference” was an important concept for early modern theorists of religious freedom. In his Two Tracts on Government, Locke infamously argued that the state could compel citizens to observe rites (kneeling for communion, the wearing of surplices, and so on) because these outward acts could not effect one’s inward belief. In the eyes of nonconformist (“Puritan”) critics, however, these adiaphora or “matters indifferent” were papistical idols and could not be tolerated. They rejected the distinction between outward action and inward belief, as Locke later did himself. To call these conflicts “merely symbolic” is therefore a claim with deep religious roots. See Rose, “John Locke, ‘Matters Indifferent,’ and the Restoration of the Church of England”; see also McClure, “Difference, Diversity, and the Limits of Toleration.” 19. Not surprisingly, Neuhaus singled out Pfeffer as a great corrupter of religious freedom. In a series of articles published in the late ’80s and early ’90s, he railed against what he called the “Pfefferian inversion” of the First Amendment, a sophism whereby a single clause designed to protect the free exercise of religion was divided into two, the “free exercise” and “non-­establishment” clauses. The effect of this inversion, Neuhaus argued, was to allow “absolutists for strict separationism” to paint all government involvement in religious matters as unconstitutional. This in turn allowed them



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to accomplish their ultimate goal, which was to seal off religion “hermetically” in the private sphere, thus violating the fundamental ethos of all biblical religions, which are “undeniably public in character” and thus establishing a state religion of “secular humanism.” Neuhaus, “Contending for the Future,” 20. 20. Even in the small field of cultural geography, the study of emotion and affect has grown far too large in recent years to adequately survey here. For comprehensive overviews of the “emotional turn” in geography, see Davidson, Bondì, and Smith, Emotional Geographies; Smith, Emotion, Place and Culture; Pile, “Emotions and Affect in Recent Human Geography.” My analytic approach is guided by the cultural sociology of contentious politics. See, for example, Berezin, “Emotions and Political Identity”; Berezin, “Secure States”; Calhoun, “Putting Emotions in Their Place”; Emirbayer and Goldberg, “Pragmatism, Bourdieu, and Collective Emotions in Contentious Politics”; Goodwin and Jasper, “Emotions and Social Movements”; Goodwin, Jasper, and Polletta, eds., Passionate Politics; Zubrzycki, Crosses of Auschwitz. 21. A detailed methodological note is in order here. Fieldwork for this project was carried out in six primary locations in California, New England, and the Upper Midwest. These ranged from small towns on the exurban fringe to large metropolitan areas. In addition to being the sites of significant legal controversy, all six places had experienced significant demographic shifts in recent decades, partly as a result of increased immigration from the Global South. Most had periodic histories of religious conflict and all were religiously diverse, although to varying degrees. By sifting through media reports and public court records, I compiled lists of people and organizations that were publicly involved in either litigation or political activity related to cases that clearly touched on questions of pluralism and civility. These included attorneys representing plaintiffs and defendants, plaintiffs and defendants themselves, civic organizations, historic preservationists, civil rights activists, religious leaders, and local politicians. I also identified groups and individuals who appeared to have a significant stake in particular cases but may not have been directly involved in legal or political negotiations. I made initial contact either by mail or by e-­mail. Many people either failed to respond or denied my request for an interview. I chose quite deliberately not to select participants by religion, race, ethnicity, class, gender, sexual orientation, or any other standard marker of social identification. Using such criteria would have been pointless in such a small-­scale study. More to the point, they would have encouraged both me and my readers to make essentializing assumptions about my subjects’ motives and ideological orientations. To even suggest that my sole Buddhist informant spoke on behalf of Buddhists would have been the height of absurdity. This does not mean that I left out “personal information” altogether. Often my informants told me things that were implicitly or explicitly tied to constructions of personal and collective identity. When someone spoke to me “as a Catholic,” “as a Jew,” “as a lawyer,” or “as a veteran”—and most of them did speak to me “as” one thing or an­other—I made sure to include those qualifiers precisely because they might tell me how the experiences and identities of Catholics, Jews, lawyers, and veterans are constructed in discourse between strangers. While I was not about to ask anyone to fill out a questionnaire or answer a set of questions that would re­cord their “real” identity, I was

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keenly interested in how they thought such aspects of social position bore on questions of religious liberty. Still, it was up to them to volunteer such information. Ultimately, I met with approximately thirty interviewees in a variety of settings, including government offices, private offices, coffee shops, libraries, churches, homes, and public parks. At a few of these meetings, friends or family members of the interviewee participated, although their comments were generally not recorded. Discussions ranged in length from one to three hours. They were taped with a digital recorder and later transcribed in their entirety. Using colloquial, nonanalytic terms, I placed open-­ ended questions about broad moral and political questions throughout each interview, attempting to create as much space as possible for interviewees to speak at length and without interruption. I also sought at all times to (politely) play devil’s advocate by providing counterarguments and repeating charges made by those with opposing beliefs on legal and political—though not theological—questions. In each instance, I asked respondents to account for their actions and interpret the actions of others in ways that would link their own experiences to those of the country as a whole. To that end, I asked many broad questions about “America,” “the Constitution,” and “democracy.” Once the interviews were transcribed and reread several times, I identified roughly thirty themes under which I aggregated key passages from each interview: for example, “the war on Christianity,” “atheism, “vision,” “tolerance,” “taking offense,” and “the public/private divide.” By compiling a master list of statements relating to each theme, I was able to look for differences and commonalities among interviews, as well as among the other sources of written and oral data I had gathered. With the help of desktop indexing and search software (i.e., Google Desktop), this coding system allowed me to sort and retrieve data from hundreds of pages of transcripts and textual sources. Quotations in this chapter have been lightly edited for clarity and flow. Fragmentary digressions, unintelligible asides, and most filler words (“like,” “so,” “um”) were excised. Strict transcriptions of the spoken word can make even the most eloquent orators sound confused, inarticulate, and indecisive, especially when juxtaposed against the measured written prose of judges and philosophers. I thought my respondents deserved better. Finally, I should note that I have made every effort to obscure details that would reveal the identities of my subjects. They have been identified by pseudonyms and, on occasion, by basic demographic data such as age, profession, ethnicity, and religious affiliation (if offered as a meaningful fact). I have also given pseudonyms to places and, where necessary, altered the factual details of court cases in which my subjects were involved. In matters of public record such as trial proceedings, I made every effort to ensure that subjects could not be identified as named litigants. 22. Ahmed, Promise of Happiness, passim. 23. Mark Roberts, http://​www​.markdroberts​.com​/ htmfiles​/resources​/cross controversy​.htm. 24. Ibid. 25. Alexander, Civil Sphere, 153, 165, 184, 232. 26. Engelke, God’s Agents. 27. In this sense, law demands what sociologists would call “emotion work”—“the



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act of trying to change in degree or quality an emotion or feeling.” See Hochschild, “Emotion Work, Feeling Rules, and Social Structure.” 28. Taylor, Secular Age, 473–95. 29. American religious pluralism is the subject of a very large and diverse literature, too large to review here. My understanding of this complicated subject has been shaped by a wide range of scholarship in the social sciences and humanities, especially Ammerman, ed., Everyday Religion; Banchoff, Democracy and the New Religious Pluralism; Bender and Klassen, eds., After Pluralism; Chaves and Gorski, “Religious Pluralism and Religious Participation”; Cole and Hammond, “Religious Pluralism, Legal Development, and Societal Complexity”; Beneke, Beyond Toleration; Berger and Luckmann, “Secularization and Pluralism”; Berger, “Pluralism, Protestantization, and the Voluntary Principle”; Hutchison, Religious Pluralism in America; Marty, The Protestant Voice in American Pluralism; Marty, “Pluralisms”; McGraw, Formicola, and Eck, Taking Religious Pluralism Seriously; Moore, Religious Outsiders and the Making of Americans; Prothero, A Nation of Religions; Richardson, Strangers in This Land; Roof, Religious Pluralism and Civil Society; Williams, “Languages of the Public Sphere”; Wuthnow, America and the Challenges of Religious Diversity. 30. On the sacri monti tradition, see Schama, Landscape and Memory, 436–46. For deeper explorations of mountains as sacred landscapes, see Della Dora, Imagining Mount Athos; Farmer, On Zion’s Mount. 31. For a partial but informative analysis of the case, see Budd, “Cross Purposes.” 32. Irons, God on Trial, 121–22. 33. Smith, Christian America? 34. Barthes, Camera Lucida, 26, 45, 51, 57. 35. Basso, Wisdom Sits in Places, 108. 36. The best work on this dimension of emplacement is still Cresswell, In Place/Out of Place. Also see Sibley, Geographies of Exclusion. 37. Asad, “Trying to Understand French Secularism.” 38. Edgell, Gerteis, and Hartmann, “Atheists as ‘Other’”; Zuckerman, Faith No More. 39. As the sociolegal scholar Davina Cooper has shown in her insightful studies of Orthodox Jewish place-­making, questions of expressive harm and territorial exclusion also arise when minority groups intervene in the symbolic landscape. See Cooper’s “Talmudic Territory?,” Governing Out of Order, “Promoting Injury or Freedom,” and Challenging Diversity. 40. Marty, When Faiths Collide. 41. Geertz, “Afterword,” 259. 42. Weber, “Protestant Sects and the Spirit of Capitalism.” 43. Hecht, “Active versus Passive Pluralism,” 142. As the anthropologist Carol Greenhouse notes, “The separation of church and state in the United States does not by itself create a secular state—and even less so, a secular public sphere. On the contrary, the constitutional requirement of separation can be (and is widely) read as a necessary connection between political legitimacy and religious pluralism—a proposition that carries significant if changeable cultural content in the United States today. Ethnographic and sociological accounts of civic, economic, and religious life among Ameri-

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cans return again and again to this connection as a fundamental principle of personal worth (in both the moral and economic sense of this term) and criterion of collective social value.” Greenhouse, “Separation of Church and State in the United States,” 494. 44. The religion scholar Diana Eck, one of the better-­known authorities on pluralism, defines it as a “response” to diversity, distinct from other responses including inclusion, exclusion, and syncretism. “Pluralism,” she writes, “does not require the shedding of distinctive cultural, religious, or political differences, but is the effort to create a society in and out of all these differences.” Eck, “American Religious Pluralism,” 245. As an “effort” and “response,” pluralism therefore has an obvious quality of moral action. 45. Cuddihy, No Offense, 13, 14, 193. 46. Cuddihy, Ordeal of Civility, 13–14. 47. Ibid., 150. 48. On this shift toward toleration, see Laycock, “Church and State in the United States,” 531. 49. Sullivan, “Religion Naturalized,” 84, 94. 50. Richardson, Being-­in-­Christ and Putting Death in Its Place. CHAPTER 3

1. For a conservative Christian defense of this movement, see Robertson, Ten Offenses; Moore and Perry, So Help Me God. For analyses from the perspective of religious studies, see Eck, “Prospects for Pluralism”; Smith, Relating Religion; Watts, “Ten Commandments Monuments and the Rivalry of Iconic Texts.” 2. “Left” and “Right” are clumsy terms when applied to American church-­state relations, which are marked by many cross-­cutting ideological alliances. For the purposes of this chapter, however, they adequately describe the activist groups that have litigated most recent cases. 3. See, for example, Feldman, Divided by God; McConnell, “The Origins of the Religion Clauses of the Constitution”; Smith, “Symbols, Perceptions, and Doctrinal Illusions.” 4. Pew Forum on Religion and Public Life, “Survey on Public Display of the Ten Commandments.” 5. Shils, Center and Periphery; Friedland and Hecht, “The Politics of Sacred Place”; for sociological expositions of the “sacred center” concept, see Friedland and Hecht, To Rule Jerusalem. 6. For a fuller treatment of the theories underpinning my argument in this chapter, see the journal article on which it is based, Howe, “Thou Shalt Not Misinterpret.” 7. See, for example, Blomley, “Landscapes of Property”; Olwig, Landscape, Nature, and the Body Politic; Blomley, Unsettling the City; Jones, ed., “Special Issue on Landscape, Law, and Justice.” 8. On the geographical materiality of law, see Blomley’s Law, Space and the Geographies of Power and “Cuts, Flows, and the Geographies of Property”; Delaney’s Race, Place, and the Law, Law and Nature, and The Spatial, the Legal and the Pragmatics of World-­Making; Olwig’s “The Landscape of ‘Customary’ Law versus that of ‘Natural’ Law” and “Law, Policy and the Changing Meaning of Landscape.”



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9. “A picture,” Mitchell writes, “is less like a statement or a speech act . . . than like a speaker capable of an infinite number of utterances. An image is not a text to be read but a ventriloquist’s dummy into which we pro­ject our own voice. When we are offended by what an image ‘says,’ we are like the ventriloquist insulted by his own dummy.” Mitchell, What Do Pictures Want?, 140. 10. Cathexis is a Freudian term meaning “The concentration or accumulation of mental energy in a particular channel.” In “The Superego and the Theory of Social Systems” Talcott Parsons uses the term to describe feelings of “attachment or aversion” that tell us what an object “means in an emotional sense,” and he argues that for a person to truly cathect with an object her or she must first “internalize” a “cultural symbol system.” This is the sense in which Jeffrey Alexander uses the term. 11. For detailed analyses of this landmark case, see Sullivan, Paying the Words Extra; Swanson, Christ Child Goes to Court. 12. Lynch v. Donnelly. Vol. 465. U.S. Supreme Court, 1984:​687–88. 13. Eisgruber and Sager, Religious Freedom and the Constitution, 121–58. 14. McConnell, “Origins of the Religion Clauses of the Constitution,” 148. 15. Choper, “Endorsement Test,” 521. 16. McConnell, “Origins of the Religion Clauses of the Constitution,” 155. 17. Failinger, “In Praise of Contextuality,” 13. 18. For example, Anderson and Pildes, “Expressive Theories of Law.” 19. Tribe, “Constitutional Calculus,” 611. 20. Loewy, “Rethinking Government Neutrality Towards Religion Under the Establishment Clause,” 1051. Martha Nussbaum, a great fan of the endorsement test, traces this line of argument back to James Madison. “Equal standing requires not just noninterference,” she writes. “It requires, as Madison saw, a symbolic politics that acknowledges equality and does not create ranks and orders of citizens. One might think that the symbolic domain is unimportant. So thought many defenders of the Virginia assessment, who said that, after all, nobody is really made to pay the established church if he does not want to. What Madison saw, however, is that a failure of respect in the symbolic domain is like an insult, a slap in the face, and, moreover, it is the sort of slap in the face that noble gives to a vassal, one that both expresses and constitutes a hierarchy of ranks.” Nussbaum, Liberty of Conscience, 227. For a clear and compelling argument in support of the endorsement test, see Eisgruber and Sager, Religious Freedom and the Constitution. 21. Blomley, Law, Space and the Geographies of Power. 22. For a closely related argument about law and race, see Forest, “Mapping Democracy.” 23. Cover, “The Supreme Court 1982 Term—Foreword,” 9, 17, 26–33. 24. Elk Grove Unified School District v. Newdow, 124:2, 3. 25. Newdow, 2324. 26. Stone v. Graham. Vol. 449. U.S. Supreme Court, 1980. 27. Ibid., 41, 46. 28. McCreary County v. ACLU of Kentucky. Vol. 125. U.S. Supreme Court, 2005:2745, 2747. 29. Ibid., 2753, 2756.

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30. See Colorado v. Freedom from Religion Foundation 1995, 1017. 31. Van Orden was homeless and living in a tent throughout the court proceedings, a fact that the news media sometimes used to paint him as a quixotic malcontent, but which was not discussed in court. Its influence on the case is an interesting but open question. The other monuments are dedicated to the heroes of the Alamo, Hood’s Brigade, the Confederate army, volunteer firemen, Terry’s Texas Rangers, Texas cowboys, the Spanish-­American War, the Texas National Guard, Texas schoolchildren, Texas pioneer women, the Statue of Liberty (a replica by the Boy Scouts), Pearl Harbor veterans, Korean War veterans, World War I veterans, disabled veterans, and Texas peace officers. 32. Brief for Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 2. 33. Ibid., 42. 34. Brief for the United States as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 6. 35. Ibid., 6, 18. 36. This veneer has been thoroughly explored in Stocking, Objects and Others; Clifford, Predicament of Culture; Kirshenblatt-­Gimblett, Destination Culture. 37. Brief for The Becket Fund for Religious Liberty as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 7. 38. Brief for the Fraternal Order of Eagles as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 21. 39. Brief for the Claremont Institute Center for Constitutional Jurisprudence as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 2. 40. Brief for the states of Indiana, Alabama, Arizona, Arkansas, Florida, Idaho, Kansas, Kentucky, Louisiana, Mississippi, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, and Wyoming as Amici Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 21. 41. Brief for the United States as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 6. 42. Brief for the American Center for Law and Justice as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 2. 43. Brief for the Fraternal Order of Eagles as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 4. 44. Finkelman, “Ten Commandments on the Courthouse Lawn and Elsewhere.” 45. Brief for Focus on the Family as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 27, 24. 46. Ibid., 28. 47. Brief for Wallbuilders, Inc. as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 19–20. 48. Smith, Christian America?, 147. 49. Smith and Emerson, American Evangelicalism, 121. 50. Brief for the American Family Association Center for Law and Policy as Amicus



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Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 17. 51. Brief for the Rutherford Institute as Amicus Curiae Supporting Respondents, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 16. 52. Van Orden v. Perry 125 Supreme Court 2854 (2005): 2865. 53. Ibid., 2868, 2870. 54. Ibid., 2871. 55. Ibid., 2887. 56. Ibid., 2895, 2897. 57. U.S. Supreme Court 2005, 15. 58. Brief for the Baptist Joint Committee and the Interfaith Alliance Foundation as Amici Curiae Supporting Petitioner, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 13. 59. Watts, “Ten Commandments Monuments and the Rivalry of Iconic Texts.” 60. Brief for the Freedom from Religion Foundation as Amicus Curiae Supporting Petitioner, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 2. 61. Brief for Americans United for the Separation of Church and State, People for the American Way Foundation, and the National Council of Jewish Women as Amici Curiae Supporting Petitioner, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 12-­13. 62. Brief for the Hindu American Foundation and Others, representing the interests of Hindus, Buddhists, and Jains as Amicus Curiae Supporting Petitioner, Van Orden v. Perry, 125 Supreme Court 2854 (2005) (No 03-­1500), 22, 20, 5. 63. Howe, Garden and the Wilderness, 19. 64. Alexander, Civil Sphere, 605 n. 63. 65. For studies that foreground the performative dimension of landscape, see Daniels and Cosgrove, “Spectacle and Text”; Hoelscher, “Making Place, Making Race”; Jackson, “Landscape as Theater”; Neumann, “Churchill and Roosevelt in Africa”; Olwig, “Performance, Ætherial Space and the Practice of Landscape/architecture.” 66. Carey, “A Republic, If You Can Keep It.” 67. I am grateful to Michael Curry for encouraging this line of thought. CHAPTER 4

1. Trial transcript, 127. Subsequent page numbers appear in the text. 2. The literature on American Indian struggles to protect sacred places is large and diverse. Key works with an activist or normative bent include LaDuke, Recovering the Sacred; LaDuke, All Our Relations; Burton, Worship and Wilderness; Deloria, For This Land. More scholarly historical works, accessible to a general audience, are Nabokov, A Forest of Time; Nabokov, Where the Lightning Strikes; Gulliford, Sacred Objects and Sacred Places. For a detailed analysis of the case law surrounding Indian sacred lands claims, including many of the cases discussed in this chapter, see Brown, Religion, Law, and the Land. For a recent historical overview of the Supreme Court’s involvement in sacred lands, see Riley, “History of Native American Lands and the Supreme Court.” For critical appraisals of this legal history from the perspective of religious studies, Michael-

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Notes to Pages 85–86

sen, “Dirt in the Court Room”; Sands, “Territory, Wilderness, Property, and Reservation”; Sands, “Property of Peculiar Value.” For a clear typology and historical overview of Indian sacred geographies, see Gulliford, Sacred Objects and Sacred Places, 69–97. 3. The scholar of Native American religions Michael McNally notes a central irony of Native struggles for religious freedom since the 1970s: “Put simply, Native American communities have found many (if not most) legal protections for their religious traditions by expressly not calling attention to their religiousness. . . . In part because the First Amendment has let them down; in part because their traditions have never been plainly, or solely, religious; in part because assertions of sovereignty, and the long history of federal Indian law that clarifies that sovereignty, matter, Native communities have sought and found further protection under federal Indian law, and under statutory regimes, especially historic preservation and environmental law, than they might have under the current state of First Amendment protection.” McNally, “Native American Religious Freedom Beyond the First Amendment,” 226–27. 4. Admittedly, some progress has been made through the negotiation of voluntary agreements, as the anthropologist Michael Brown demonstrates in his important book, Who Owns Native Culture? 5. Lyng v. Northwest Indian Cemetery Protective Assn., 485 US 439, 472 (Supreme Court 1988). 6. On the history of American Indians and the creation of public lands, especially national parks, see Spence, Dispossessing the Wilderness; Jacoby, Crimes against Nature. For a helpful overview of the historical literature, see Warren, “Nature of Conquest.” 7. On the complex modern history of Native American appropriations of the category “religion,” see Wenger, We Have a Religion. 8. Because of the sensitivity of the subject, a disclaimer is in order. This chapter is not about the religious lives of the Hopi, Navajo, or any other native group. I make absolutely no claim to the kind of expert, intimate knowledge that writing about these cultures demands. Although I have made every effort to check the court records against the best scholarship in anthropology, history, and religious studies, I cannot promise that my representations of Native American beliefs are strictly accurate (although strict accuracy can only be expected from religious practitioners themselves, in their own languages), and these representations are certainly not contextualized with the kind of fine-­grained depth that scholars of religion rightly expect. This chapter is about law, and about how law is used, by non-­native and native alike, to interpret those traditions. 9. On struggles over sacred lands as symptomatic of neocolonialism, see Leavelle, “Perils of Pluralism”; Leavelle, “Geographies of Encounter.” 10. Academic studies of spirituality that I have found especially helpful include Bender, New Metaphysicals; Brown, Channeling Zone; Schmidt, Restless Souls; Van der Veer, “Spirituality in Modern Society”; Wuthnow, After Heaven. 11. On the religious dimensions of this tradition, see Albanese, Nature Religion in America; Albanese, Reconsidering Nature Religion; Dunlap, Faith in Nature; Gatta, Making Nature Sacred; Ross-­Bryant, Pilgrimage to the National Parks; Sideris, “Religion, Environmentalism, and the Meaning of Ecology”; Stoll, Protestantism, Capitalism, and Nature in America; Stoll, “Religion ‘Irradiates’ the Wilderness”; Taylor, Dark Green Religion; Worster, Passion for Nature.



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12. The classic statement is White, “Are You an Environmentalist or Do You Work for a Living?” In a scathing critique of the environmental leader Bill McKibben, White expands on the specifically Protestant aspects of this intellectual tradition. White, “Bill McKibben’s Emersonian Vision.” 13. From a lecture by federal Indian law expert Kevin Washburn, quoted in McNally, “Native American Religious Freedom Beyond the First Amendment,” 227, 232. 14. As Talal Asad appositely notes, “Victorian anthropologists held the view that ‘magic,’ being essentially the deployment of mistaken understandings of natural causality, was a kind of pseudoscience—and therefore not to be confused with morality. ‘Religion,’ on the other hand, when purified of its ‘magical’ elements, was held to be the original site of morality, because religious morality had to do with the responsibility of agents for their actions and to their God. Secular morality could simply replace God by the individual conscience of men and women. Hence the ‘primitive’ belief that a human death automatically triggers a polluting substance contact with which causes harm to living humans is at once an erroneous understanding of natural causality and an idea incompatible with ‘responsible’ action.” Asad, Formations of the Secular, 94–95. 15. My approach throughout this chapter is strongly guided by the anthropologist William Pietz’s seminal work on fetishism, from which I borrow the concept of “untranscended materiality.” Pietz, “The Problem of the Fetish, I,” “The Problem of the Fetish, II,” and “The Problem of the Fetish, IIIa.” On the materiality of spirit possession in Afro-­ Atlantic religions, see Johnson, Spirited Things. 16. Gooding, “At the Boundaries of Religious Identity,” 167. 17. Agrama, Questioning Secularism. For a fuller discussion of questioning power, see chapter 1. 18. On the broader story of Native American struggles for religious freedom in the twentieth century, see Pommersheim, Broken Landscape, 183–210; Wenger, We Have a Religion. It is a mostly unhappy story. As Wenger puts it, “From the federal government’s nineteenth-­century bans on indigenous ceremonial practices to twenty-­first-­century legal battles over Indian sacred lands, the United States has often acted as if the indigenous traditions of the continent were somehow not truly religious, not eligible for the constitutional protections of the First Amendment” (xiii). 19. The United States has ceded sacred sites to native communities only three times: Blue Lake to the Taos Pueblo in 1970; Mount Adams to Washington’s Yakama Indians in 1972; and Kaho’olawe Island, a former Navy bombing practice site, to Native Hawaiians in 1993. Gulliford, Sacred Objects and Sacred Places, 117–18. 20. Brown, Religion, Law, and the Land, 45; for a detailed analysis of this case, see 39–60. 21. Badoni v. Higginson, 455 F. Supp. 641, 646 (Dist. Court, D. Utah 1977). 22. Nabokov, Where the Lightning Strikes, 101–4. 23. Badoni v. Higginson, 645. 24. Nabokov, Where the Lightning Strikes, 52. 25. For detailed histories of this case, see Brown, Religion, Law, and the Land, 9–38; Nabokov, Where the Lightning Strikes, 52–69. On the environmental legacy of TVA v. Hill, see Plater, Snail Darter and the Dam. 26. Sequoyah v. Tennessee Valley Authority, 620 F. 2d 1159, 1163, 1164–5 (Court

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of Appeals, 6th Circuit 1980). Another case, Inupiat Community of Arctic Slope v. United States, was decided on similar grounds. 27. For a detailed analysis of this case from the perspective of critical geography, see Forbes-­Boyte, “Fools Crow Versus Gullett.” 28. Crow v. Gullet, 541 F. Supp. 785, 791 (Dist. Court, D. South Dakota 1982). 29. Wilson v. Block, 708 F. 2d 735, 742 (Court of Appeals, Dist. of Columbia Circuit 1983). 30. For exceptionally clear legal analysis of the cases leading up to Lyng, see Gordon, “Indian Religious Freedom and Governmental Development of Public Lands.” 31. Lyng v. Northwest Indian Cemetery Protective Assn., 485 US 439, 452 (Supreme Court 1988). Citations omitted. 32. Ibid. 33. Ibid. 34. Widely seen as an unmitigated disaster for Native American religious freedom, Lyng did spur modest legislative reforms, including an executive order by President Clinton requiring federal agencies to accommodate Indian access to sacred sites. But the great irony of Lyng is that the G-­O road was never built because the area in question was ultimately designated as an official wilderness. For a more hopeful account that tells the story of Lyng from the perspective of local tribes, see Bowers and Carpenter, “Challenging the Narrative of Conquest.” 35. There is no definitive telling of this history, but four unpublished theses have been especially helpful in shaping my understanding of it: Mahoney, “This Land Is Your Land, This Land Is My Land”; Morman, “Kachinas Are Snowmakers”; Richards, “Bodies of Belief”; Schermerhorn, “Regulating Desecration and the San Francisco Peaks.” 36. Nabokov, Where the Lightning Strikes, 137. 37. Affidavit of Abbott Sekaquaptewa, a chairman of the Hopi Indian Tribe, submitted as Plaintiff’s Exhibit XIV, p. 9 in the case of Wilson v. Block, 708 F.2d 735 (1983); quoted in Brown, Religion, Law, and the Land, 64. 38. Wilson v. Block, 742. 39. On the role of landscape in this history, see Kelsey, Archive Style. 40. Lurie, Louis Agassiz. 41. Egan, Frémont, Explorer for a Restless Nation. 42. Glowacka, Washburn, and Richland, “Nuvatukya’ovi, San Francisco Peaks,” 550. As its chief informant, this team of anthropologists consulted Emory Sekaquaptewa, a Hopi elder and anthropologist whose trial testimony also informs my account here. 43. In this respect, the Peaks comprise what the anthropologist Tim Ingold calls a “taskscape,” which is the processual interweaving humans and nonhumans through activities of dwelling. For the most vivid historical illustration of a Native American taskscape in action, see White, Organic Machine. On taskscapes, see Ingold, “Temporality of the Landscape.” 44. This thumbnail summary of Hopi belief relies largely on the testimony of Emory Sekaquaptewa, a renowned Hopi anthropologist and religious practitioner, in the Snowbowl trial. It is by no means definitive or comprehensive. See the trial transcript, 571–603. 45. Kelley, Navajo Sacred Places, 20–21.



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46. Carmean, Spider Woman Walks This Land, 8:134. 47. Nabokov, Where the Lightning Strikes, 93. 48. Carmean, Spider Woman Walks This Land, 8:59; Kelley, Navajo Sacred Places, 170. 49. And this is just the very beginning of their role in the broader cultural landscape of the Colorado Plateau. To even gloss over the Peaks’ significance to the Apache, the Hualapi, the Havasupai, the Paiute, or the other tribes recognized to hold them sacred would be impossible here. It would also potentially obscure the complexity and internal heterogeneity of these tribal belief systems. For example, opposition to Snowbowl among Hopis was initially associated with the so-­called Traditionalist Movement, a controversial millennial faction that campaigned aggressively against development on sacred lands (Clemmer, Roads in the Sky, 198). 50. In Arizona, Indians were not even enfranchised until 1948, eleven years after the first ski club was established on the Peaks. 51. Kelley, Navajo Sacred Places, 170. 52. In 2001–2, there were 87 inches of snow, 4 skiable days, and 2,857 skiers. In contrast, in 2004–5, there were 460 inches of snow, 139 skiable days, and 191,317 skiers. Fletcher opinion 1030. 53. Sullivan, Impossibility of Religious Freedom, 28. 54. For the clearest explanation of RFRA from a sociolegal standpoint, see Sullivan, Impossibility of Religious Freedom, passim. 55. “Editorial: Tribal Sovereignty Over Peaks a Stretch.” 56. For a thorough analysis of the role that racial stereotypes played in the Snowbowl case, as well as of the broader sociolegal contours of the controversy, see Sefiha and Lauderdale, “Sacred Mountains and Profane Dollars.” 57. Wilson with Callaway, “Editorial: An Apology on Language, a Commitment on Coverage.” 58. Recollecting his involvement in the White Vulcan Mine closing, Babbitt asked elsewhere, “Which god and whose land ethic, I wondered, will finally prevail in the struggle for use and control of this numinous mountain?” Babbitt, Cities in the Wilderness, 146. The press conference footage is included in a documentary by Klee Benally, a prominent Navajo anti-­Snowbowl activist, called The Snowbowl Effect. 59. Babbitt, “Between the Flood and the Rainbow,” 4. 60. Mahoney, “This Land Is Your Land, This Land Is My Land,” 75. 61. On the concept of “slow violence,” see Nixon, Slow Violence and the Environmentalism of the Poor. 62. Trial transcript, 453. 63. Ibid., 453, 530–32. 64. Ibid., 562, 566. 65. Ibid., 600, 602. As an illustration of just how complicated Indian legal and religious relations with non-­Indians can be, it is worth noting a brief exchange at the end of Sekaquaptewa’s testimony. The trial judge, Paul Rosenblatt, told the court that he and the Hopi anthropologist were old friends going back to law school, and that they served together on the first Hopi Tribal Court of Appeals, of which Sekaquaptewa was chief judge. 66. Ibid. 119.

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Notes to Pages 102–114

67. Testimony of Antone Honanie, 563. 68. Testimony of Larry Foster, 194, 206. 69. Trial transcript, 722, 690, 723, 701. Subsequent page numbers appear in the text. 70. For a fascinating comparative study of how the idea of magic shaped racialized understandings of Native American and African American religion, see Murray, Matter, Magic, and Spirit. 71. 408 F. Supp. 2d 866, 905. Subsequent page numbers appear in the text. 72. Navajo Nation v. US Forest Service, 535 F. 3d 1058, 1062–63 (Court of Appeals, 9th Circuit 2008). 73. Ibid., 1063–64. Citations omitted. 74. In an article praising Bea’s decision, the outspoken legal secularist Marci Hamilton showed just how misleading the visual-­aesthetic lens can be. “This is a national forest,” Hamilton wrote, “which has been preserved for the benefit of the American people. If an artist roped off the area, saying that her artistic expression required the preservation of a pristine wilderness, and therefore no ski operation could be permitted, no one would think that she could take such a unilateral action. Attempting to preserve the area as pristine for religious reasons is little different.” Hamilton, “FindLaw’s Writ—­Hamilton.” 75. Navajo Nation v. US Forest Service, 1096. 76. Ibid., 1113–14. 77. Ibid., 1070. 78. See, for example, Winnemem Wintu Tribe v. US Dept. of Interior, 725 F. Supp. 2d 1119 (Dist. Court, ED California 2010); La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. United States Department of Interior (2012); Snoqualmie Indian Tribe v. Ferc, 545 F. 3d 1207 (Court of Appeals, 9th Circuit 2008). 79. Deloria, God Is Red, 70. 80. Deloria, “Secularism, Civil Religion, and the Religious Freedom of American Indians.” 81. Deloria, “Sacred Lands and Religious Freedom,” 206. See also Deloria, “Trouble in High Places.” 82. On the role of place and landscape in lived Christianity, see, for example, Orsi, The Madonna of 115th Street; Tweed, Our Lady of the Exile. On “green” modalities of Christian place-­making in America, see Gatta, Making Nature Sacred; Stoll, Protestantism, Capitalism, and Nature in America; Gould, At Home in Nature; Lane, Ravished by Beauty. 83. According to one carefully worded anthropological characterization, traditional Indian religions are “embedded in a sacred landscape whose contours and places are rich in stories, remembered events, cosmological structures, and which resonate the power of sanctified places through a symbolic understanding of the interdependent relationships between place, plants, animals, and human beings.” Irwin, “Native American Spirituality,” 104. Or, as the anthropologist Keith Basso puts it in his widely cited ethnography of Western Apache place-­making, Wisdom Sits in Places, “For Indian men and women, the past lies embedded in features of the earth—in canyons and lakes, mountains and arroyos, rocks and vacant fields—which together endow their lands with multiple forms of significance that reach into their lives and shape the ways they think. Knowledge of places is therefore closely linked to knowledge of the self, to grasping one’s position in



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the larger scheme of things, including one’s own community, and to securing a confident sense of who one is as a person” (34). 84. Basso, Wisdom Sits in Places, 156 n. 11. 85. Sachs, Humboldt Current. 86. On the negotiation of Indian and non-­Indian conceptions of another iconic mountain in the American West, see Farmer, On Zion’s Mount. For a deep history of mountain sacrality in a very different cultural context, see Della Dora, Imagining Mount Athos. For a global survey of sacred mountains, see Bernbaum, Sacred Mountains of the World. CHAPTER 5

1. In his seminal history, Wilderness and the American Mind, Roderick Frazier Nash argued that wilderness began as a religious concept but was gradually secularized, stripped of all but vestigial religious meaning. In this respect, Nash’s narrative followed a classic secularization narrative, or what Charles Taylor calls “the subtraction story.” More recent work in environmental history and religious studies has implicitly challenged this story by suggesting that the religious meanings of wilderness are alive and well. See, for example, Stoll, Protestantism, Capitalism, and Nature in America; Stoll, “Religion ‘Irradiates’ the Wilderness”; Taylor, Dark Green Religion; Ross-­Bryant, Pilgrimage to the National Parks. For the definitive political history of postwar wilderness preservation, see Turner, The Promise of Wilderness. For an early analysis of wilderness as sacred space in late twentieth-­century America, see Graber, Wilderness as Sacred Space. 2. On the religious (and especially Presbyterian) roots of modern environmentalism, see Stoll, Inherit the Holy Mountain. Curiously, Stoll insists that the wilderness movement was not religiously inspired, mostly because the founders of the Wilderness Society were not religious themselves and avoided the moralistic language of Protestant environmental reformers. Although I have benefited tremendously from Stoll’s scholarship, I find this claim unconvincing. For a much less theologically sophisticated but equally thought-­provoking history of religious environmentalism, see Dunlap, Faith in Nature. On the history of “nature religion,” a more diffuse phenomenon that extends beyond environmental thought, see Albanese, Nature Religion in America and Reconsidering Nature Religion. For an attempt to map out a distinctive “dark green” subset of nature religion, see Taylor, Dark Green Religion. Although there is a large and vibrant body of normative theological scholarship on environmental questions, its methods and goals are largely orthogonal to mine in this chapter. For an excellent overview, see Jenkins, “Religion and Ecology.” In addition, there is an increasingly rich body of social scientific scholarship on religious environmentalism—that is, on environmentalism as practiced by explicitly religious institutions and individuals—that I do not touch on here. For comprehensive introductions to this topic, see Gottlieb, ed., This Sacred Earth; Gottlieb, Greener Faith; Kearns, “Saving the Creation.” For synthetic accountings of current scholarship on religion and ecology, there are now several high-­quality reference works. See Gottlieb, ed., Oxford Handbook of Religion and Ecology; Jenkins, Bauman, and Anderson, eds., Berkshire Encyclopedia of Sustainability, 1; Taylor et al., eds., Encyclopedia of Religion and Nature.

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Notes to Pages 118–121

3. Leopold, “Thinking like a Mountain”; Carson, Sense of Wonder. On the religious resonance of this famous image from Leopold, see Taylor, Dark Green Religion, 31–35. For a religious reading of Carson’s writings on wonder, see Sideris, “Secular and Religious Sources of Rachel Carson’s Sense of Wonder.” 4. Although anthropologists abandoned the term animism long ago, it still retains popular currency as a term for “primitive” and especially “earth-­based” religions. On the colonial origins of animism as a category of comparative religious analysis, see Chidester, Empire of Religion, 91–123. 5. Inhofe said this to Pat Robertson in an interview on the 700 Club, which was excerpted in the Bill Moyers documentary, “Is God Green? Religion and the Environment.” 6. The most recent and controversial statement of this position came in 2012 from Peter Kareiva, chief scientist for the Nature Conservancy. In “Conservation in the Anthropocene,” an article for the Breakthrough Institute, an ecomodernist think-­tank, Kareiva and his coauthors stress the religious origins of the wilderness ideal, and not in a positive way. “Beneath the invocations of the spiritual and transcendental value of untrammeled nature is an argument for using landscapes for some things and not others: hiking trails rather than roads, science stations rather than logging operations, and hotels for ecotourists instead of homes,” they write. “By removing long-­established human communities, erecting hotels in their stead, removing unwanted species while supporting more desirable species, drilling wells to water wildlife, and imposing fire management that mixes control with prescribed burns, we create parks that are no less human constructions than Disneyland.” Kareiva’s antiwilderness crusading has caused a firestorm in the conservation community, captured in the ferocious essay collection, edited by Wuerthner, Crist, and Butler, Keeping the Wild. Almost nothing about this debate is new, however, except the central shibboleth, “the anthropocene.” For a comprehensive overview of its antecedents, see Callicott and Nelson, Great New Wilderness Debate; Nelson and Callicott, Wilderness Debate Rages On. 7. Tribe, “Ways Not to Think about Plastic Trees,” 1339 (my emphasis). 8. Cannon, Environment in the Balance, 143. Cannon’s book devotes an entire chapter to standing and explores the subject far more comprehensively and expertly than I do here (141–69). 9. Ibid., 168. 10. The history and theory of standing doctrine in environmental law is too large and complicated to survey here. Consequently, much of what I have to say about it will undoubtedly strike lawyers as vague. I can only plead that this is a work of cultural, not legal analysis. I can also gently note that the law of environmental standing is riddled with internal inconsistencies and logical errors, as David Cassuto demonstrates in “Law of Words.” 11. I refer specifically to the “strong program” in Durkheimian cultural sociology and its performative approach to the civil sphere, which I discuss in Chapter 2. On the relationship between Durkheimian cultural analysis and Aristotelian virtue ethics, which I mean to evoke in this section, see Gorski, “Recovered Goods.” 12. On the concept of wilderness as “self-­willed land,” the preferred term of many radical and ecocentric environmentalists, see Nash, “Wild World.”



Notes to Pages 122–130

193

13. Cronon’s essay appeared in multiple places: as the opening essay in a ground-­ breaking edited volume, Uncommon Ground; in the inaugural issue of the academic journal Environmental History; and in the New York Times Magazine (albeit in truncated form). It was, in many ways, a breakthrough event for environmental history, which had long been marginalized both inside and outside the academy. 14. The key intervention was Guha, “Radical American Environmentalism and Wilderness Preservation.” 15. Sachs, “American Arcadia,” 207. 16. Cronon, “Trouble with Wilderness,” 87, 76, 73. 17. Marx, Capital, 44–45. Cronon, “Trouble with Wilderness,” 69. 18. Cronon, “Trouble with Wilderness,” 80. 19. Ibid., 70, 89. 20. Eliade, Sacred and the Profane. 21. Foreman, “Editor’s Introduction,” 1. On the religious dimensions of radical environmentalism, Lee, Earth First! For a more sympathetic view, see Taylor, “Earth and Nature-­Based Spirituality (Part I)”; Taylor and Globus, “Environmental Millennialism”; Taylor, Dark Green Religion. 22. Snyder, “Nature as Seen from Kitkitdizze Is No ‘Social Construction,’” 8. 23. Foreman, “Real Wilderness Idea,” 378. 24. Dunlap, “Comment,” 43. 25. Dunlap, Faith in Nature, 3. 26. Cronon, “Trouble with Wilderness: A Response,” 54–55. In this extraordinary mea culpa, Bron Taylor sees evidence of Cronon’s allegiance to what he calls “dark green religion,” a biocentric faith in the intrinsic value of nature. I see no evidence for this claim. If anything, it reinforces the epistemological authority of Cronon’s secularism, his ability to question religion from a position of analytical neutrality and historical awareness. While framed as an apology, it can easily be read as a redoubled defense. See Taylor, Dark Green Religion, 213. 27. Dunlap, Faith in Nature, xiv. 28. Crichton, “Environmentalism as Religion.” 29. See Kearns, “Wise Use”; Kearns, “The Role of Religions in Activism.” 30. Watt called environmentalism “a left-­wing cult dedicated to bringing down the type of government I believe in.” Howe, Behind the Curve, 124. 31. Neuhaus, In Defense of People, 176, 184, 190, 193, 197, 200. It should be noted that Neuhaus fully accepted that humanity had failed as caretaker of God’s creation. He did not deny that the environment was in bad shape. 32. Jacques, Environmental Skepticism. 33. Bookchin, “Social Ecology versus ‘Deep Ecology.’” 34. For a deeper religious analysis of this debate, see Stoll, “Green versus Green.” 35. Cronon, “Trouble with Wilderness,” 76. 36. This is one of the best-­known images in Cronon’s essay, appearing on page 88. 37. Percival, “Greening the Constitution,” 828. 38. McPhee, Encounters with the Archdruid, 132. On the religious dimensions of the Hetch Hetchy battle, see Stoll, Protestantism, Capitalism, and Nature in America, 159–69. 39. My condensed history of Mineral King relies heavily on Schrepfer, “Perspectives

194

Notes to Pages 131–135

on Conservation,” 178. Also see Schrepfer, Fight to Save the Redwoods; Harper, Mineral King; Turner and Clifton, Wild by Law. 40. Turner and Clifton, Wild by Law, 9. 41. “Prior to the Second Circuit’s landmark decision in Scenic Hudson Preservation Conference v. FPC, the concept of protection of ‘environmental values’ had almost no legal meaning,” writes A. Dan Tarlock. “Injury to an abstraction labeled the ‘environment’ . . . was an unrecognized category of legal harm.” “A Comment on Meyers’ Introduction to Environmental Thought,” 454. 42. Butzel, “Birth of the Environmental Movement in the Hudson River Valley”; Houck, Taking Back Eden, 7–22. 43. Berman v. Parker, 348 U.S. 26, 32, 33 (1954). These portions of Douglas’s dissent are quoted in Smith, “Mere Taste,” 157–58. In this article, Smith explores the challenges of reconciling aesthetic regulation with democratic theory. 44. The definitive reference in cultural geography is Duncan and Duncan, Landscapes of Privilege. 45. Sierra Club v. Hickel, 433 F. 2d 24 (9th Cir. 1970) 46. Schrepfer, “Perspectives on Conservation,” 189. 47. Earthjustice (formerly the Sierra Club Legal Defense Fund) still trumpets Mineral King as a seminal environmental victory, showing that wilderness is still a powerful fundraising tool in the environmental community. Its website takes visitors on a virtual journey through the valley and shows interviews with key players, leading them finally to a donation page. http://​earthjustice​.org​/mineralking/. 48. Murphy, Wild Bill, 271–72. 49. Much has been written on these colorful subjects. Douglas served longer than any other Supreme Court justice in history, and he led a famously debauched private life. Richard Posner called him “one of the most unwholesome figures in modern American political history.” Posner, “The Anti-­Hero.” 50. Worster, Wealth of Nature, 199. 51. In her unpublished doctoral dissertation, Diana Hyman explores the rich connections between Douglas’s influential jurisprudence of privacy and his faith in wilderness. Hyman, “Defenses of Solitude.” On Douglas as an environmental thinker, see Sowards, Environmental Justice. 52. This rhetorical tendency is stressed by both Hyman (“Defenses of Solitude,” 134) and Sowards (Environmental Justice, 64–65). 53. Douglas, Of Men and Mountains, ix. As Susan Schrepfer convincingly argues, Douglas was a strong believer in the “masculine sublime,” in which “Men courted, copied, and choreographed the convergence of spirituality and athleticism,” a “ritualized experience of struggle” that “satisfied religious impulses and suited an agenda of physical maturation.” Schrepfer, Nature’s Altars, 39–41. 54. Douglas, Of Men and Mountains, 308. 55. Ibid., 329. 56. Schrepfer, Nature’s Altars. 57. Douglas, “America’s Vanishing Wilderness,” 37, 77. This article is discussed in detail in Sowards, Environmental Justice, 1–3.



Notes to Pages 135–146

195

58. Douglas, My Wilderness, 95, 211, 192. 59. Nash, Wilderness and the American Mind, 238. 60. In fact, Douglas had already authored just such a document, although it was written from a decidedly anthropocentric perspective. Douglas, Wilderness Bill of Rights. 61. Sierra Club v. Morton, 405 US 727, 741–42 (Supreme Court 1972). 62. Ibid., 742–43. 63. Murphy, Wild Bill, 456. 64. Sierra Club v. Morton, 745–47. 65. On the religious concept of community in American environmental thought, see Stoll, “Creating Ecology.” 66. Manus, “Wild Bill Douglas’s Last Stand.” Manus painstakingly reconstructs Douglas’s environmental thought in an attempt to explain his Sierra Club dissent. He shows, for example, that Douglas detested both the Forest Service and Disney for the damage he believed they had inflicted on American attitudes toward wild nature. 67. Douglas and Meeker, “Nature’s Constitutional Rights,” 11. 68. “About This Issue,” 2. 69. Stone, Should Trees Have Standing?, 27. 70. Ibid., 2, 3. 71. Ibid., 27, 28, 29. 72. The philosopher Akeel Bilgrami uses the term “intentional vitalism” to characterize an idea associated with the theorists Bruno Latour and Jane Bennett, that nonhuman actors (or “actants”) possess full-­blown intentionality and can thus make moral demands on humans on their own terms. See Bilgrami, Secularism, Identity, and Enchantment, 162. 73. Ibid., 29. 74. Ibid., 29–30. 75. The phrase Spiritual Left belongs to Leigh Eric Schmidt, who defends the tradition in Restless Souls. 76. Tarlock, “Earth and Other Ethics,” 50. 77. Arguing more recently for reforming environmental standing law, Stone has suggested that there is something grotesque and even immoral about reducing environmental harm to the aesthetic injury suffered by human observers. By granting standing to natural objects, we would be simply acknowledging the truth of the matter, he argued, which is that harming nature is immoral. This would show that law has “not merely an educative, but a spiritualizing role in our society.” Stone, Should Trees Have Standing?, 66. 78. Krieger, “What’s Wrong with Plastic Trees?” 79. Tribe attacks as “an article of faith” “the widely held view that law exists for the purpose of ordering human societies, and for that purpose alone.” Tribe, “Ways Not to Think about Plastic Trees,” 1329, 1332–33. 80. Tribe explains that he took the term “secular transcendence” from Marx via Roberto Unger. Ibid., 1334. Subsequent page numbers appear in the text. 81. Sagoff, “On Preserving the Natural Environment,” 222. Subsequent page numbers appear in the text. 82. To make this point, he again turned to religion. “The aesthetic qualities of natu-

196

Notes to Pages 146–150

ral objects, for example, the strength of a river or the inviolability of the moon, are to some extent cultural creations, just as the entrance of the Pope into St. Peter’s is a cultural creation. Those who share in the culture learn to perceive the mightiness of the river, just as Catholics may learn to perceive the holiness of the Pope. These objects, indeed, function within a culture as paradigms of the qualities they express. Accordingly, although the determination of the expressive properties of an object depends largely on cultural convention, and therefore on a knowledge of cultural history, the perception is immediate and personal; our feelings function as cognitively as our organs of sense” (227–28). 83. It must be noted that Tribe did not see things this way. In a spirited reply, he accused Sagoff of a reactionary conservatism. “There is, to be blunt, an aggressive nostalgia about his entire mode of discourse; to environmentalists who see their mission as a celebration of life and vitality, Sagoff’s will seem a strangely dusty brief in nature’s behalf. To be sure, he offers the customary concession that “nothing is sacred” and that “everything changes,” but he offers it regretfully, in the course of enshrining the past and freezing the present.” Tribe, “From Environmental Foundations to Constitutional Structures,” 549. 84. Purdy, “Our Place in the World,” 864, 870. 85. Tarlock, “A Comment on Meyers’ Introduction to Environmental Thought,” 457, 460, 461. 86. Farber, “From Plastic Trees to Arrow’s Theorem,” 339. 87. Sax, Mountains without Handrails, 15. 88. For more on Sax and the legacy of his argument, see Krakoff, “Mountains without Handrails—Wilderness without Cellphones.” 89. Tarlock, “Earth and Other Ethics,” 65. 90. Percival and Goger, “Escaping the Common Law’s Shadow,” 120. 91. Scalia, “Doctrine of Standing as an Essential Element of the Separation of Powers.” 92. Cassuto, “Law of Words,” 94. 93. Cassuto, “Law of Words,” 94. On the critics, see, for example, Manus, “Wild Bill Douglas’s Last Stand.” Much of this antipathy can be plausibly chalked up to Scalia’s general skepticism toward public interest litigation and government overreaching. 94. Farber, “A Place-­Based Theory of Standing”; Farber, “Stretching the Margins.” 95. Cannon, “Environmentalism and the Supreme Court,” 438. 96. Worster, Passion for Nature, 361. On the complex friendship of Muir and Burroughs, see Warren, John Burroughs and the Place of Nature, 194–226. Also see Worster, Passion for Nature, 332–65. 97. On the religious dimensions of Burroughs’ agrarianism, see Gould, At Home in Nature. 98. Burroughs, “John Muir’s ‘Yosemite,’” 1165. This episode is discussed by Dunaway, Natural Visions, 20. 99. Burroughs, Light of Day, 190, 166, 187. 100. Ibid., 189 (emphasis added). 101. Burroughs, Time and Change, 16.



Notes to Pages 151–159

197

102. Smith, Secular Revolution, 1, 27. 103. See, for example, Eck, New Religious America. 104. Kysar, Regulating from Nowhere, x. 105. On wilderness as a space of legal violence, see Delaney, Law and Nature, 162–91. CHAPTER 6

1. Francis, “Laudato Si’.” 2. Pope Francis, “The Earth, Our Home, Is Beginning to Look More and More like an Immense Pile of Filth,” Twitter, June 18, 2015. https://​twitter​.com​/pontifex. 3. See, for example, Winfield, Zoll, and Borenstein, “Pope Urges Revolution to Save Earth, Fix ‘Perverse’ Economy”; Abrams, “The Earth Is Beginning to Look More and More like an Immense Pile of Filth”; Aulakh, “Pope Has Hope for ‘Pile of Filth’”; Schlanger, “Pope Francis on Twitter.” A Google News search on June 23, 2015, for the phrases “Pope Francis” and “pile of filth” got 36,600 hits. According to a June 23 article on Forbes​.com about the viral quotation, it appeared in 430,000 articles. Gallo, “17 Words That Made Pope Francis’ Climate Change Letter Go Viral.” 4. “Laudato si’,” 17. 5. Brooks, “Fracking and the Franciscans.” 6. Editorial Board, “The Pope and Climate Change.” 7. Cosgrove, “Contested Global Visions.” 8. Cohen, “Locating Filth,” ix. 9. “Laudato si’,” 72. Subsequent page numbers appear in the text. 10. On the cultural sociology of iconicity, see the important collection of essays in Alexander, Bartmanski, and Giesen, eds., Iconic Power. 11. On the instability of the concept, see Doss, “Disputation Over Sacred Space in Contemporary America”; Linenthal, “Instability of Sacred Space.” 12. Lynch, Sacred in the Modern World, 114. 13. White, “Problem with Purity,” 215, 228. 14. In fact, making religious sense of this condition has been a central preoccupation of American agrarianism, especially its leading contemporary exponent, Wendell Berry. See Gould, At Home in Nature; Shuman and Owens, eds., Wendell Berry and Religion; Wirzba, The Paradise of God; Wirzba, Food and Faith. 15. Orsi, Between Heaven and Earth, 188. 16. Indeed, some religion scholars (though no geographers that I know of) have gone so far as to define religion and ritual as a kind of spatial practice. See Tweed, Crossing and Dwelling; Smith, To Take Place. 17. The notion of landscape as a kind of cultural text has a long history, but it was most thoroughly and influentially explored by James Duncan in City as Text. Studies of the relationship between geography and textuality flourished in the 1990s but have lately been stifled by the “non-­representational turn.” See, for example, Barnes and Duncan, Writing Worlds; Curry, Work in the World; Gregory, Geographical Imaginations. 18. Thrift, “Intensities of Feeling.” 19. On landscapes of practice, see Cresswell, “Landscape and the Obliteration of

198

Notes to Pages 160–164

Practice.” On landscapes of spiritual practice, see Holloway, “Make-­Believe”; Dewsbury and Cloke, “Spiritual Landscapes.” 20. Ingold, “Temporality of the Landscape,” 152–53 (emphasis added). 21. The relationship between memory and materiality is the subject of a rich and varied literature in landscape studies. Works that strongly inform my approach to this subject include Lowenthal, “Past Time, Present Place”; Schama, Landscape and Memory; Basso, Wisdom Sits in Places; Foote, Shadowed Ground; Tilley, Phenomenology of Landscape; Walsham, Reformation of the Landscape. 22. On landscape and interpellation, see Robbins, Lawn People. 23. Frazier, “‘WTC Cross’ Is Installed in 9/11 Memorial Museum.” 24. Michael W. Smith, “There She Stands,” from the CD Worship Again, Reunion Records, 2004. According to Smith, the song was personally commissioned by his friend, President George W. Bush. 25. Jenkins, “9/11 Memorials.” 26. From the plaintiff’s complaint to the Supreme Court of the State of New York, County of New York, available online at http://​www​.atheists​.org​/document​.doc​?id​=​19 (downloaded April 28, 2014). 27. American Atheists v. Port Authority of NY& NJ, 936 F. Supp. 2d 321, 335 (Dist. Court, SD New York 2013). 28. Everett, Roadside Crosses in Contemporary Memorial Culture; Foote, Shadowed Ground; Richardson, Being-­in-­Christ and Putting Death in Its Place. 29. See, for example, Riley, Angel Patriots; Simpson, 9/11; Stubblefield, 9/11 and the Visual Culture of Disaster. 30. Marty, Modern Schism.

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Index

Abbey, Edward, 14, 127, 150 Abenaki, 92 Agassiz, Louis, 94 agency, 18, 55, 161; legal discourse, 76; secular landscape, 16, 87 Agrama, Hussein, 6, 87 Ahmed, Sara, 29 Alabama, 54 Alexander, Jeffrey, 31, 55, 183n10 Alito, Samuel, xiv Allaire, Jennifer, 106 Alliance Defense Fund (ADF), xii Althusser, Louis, 46 American Atheists, 40, 161–62 American Center for Law and Justice, 67 American Civil Liberties Union (ACLU), ix, xi–xii, xiv–xv, 29, 45, 61, 67; antiChristian bias charges against, 30 American Indian Religious Freedom Act (AIRFA), 91 American Jewish Congress, xiv, 23–24 American Legion, xii, xv 223

American Spiritual Left, 141 Americans United for the Separation of Church and State, xiii, 24, 73–74. See also Protestants and Other Americans United for the Separation of Church and State “America the Beautiful” (song), 22 Amish, 59 animal nexus theory, 148 animism, 118 anthropocene, 118 anthropocentrism, 142, 192n6 Anti-Defamation League, xiii, 71 anti-Semitism, 35, 38 Apache, 107, 189n49 Aristotle, 76 Arizona Snowbowl, 82, 84, 91, 96, 98, 99, 104–10, 113, 152, 189n49 Arlington National Cemetery, xii Asad, Talal, 47, 172–73n12, 176–77n74, 187n14 Austin (Texas), 63, 67

224 Index

Babbitt, Bruce, 98–99, 116, 189n58 Badoni v. Higginson, 88, 91 Baer v. Kolmorgen, 24, 28, 178n7 Barthes, Roland, 43 Basso, Keith, 43, 115, 190–91n83 Batts, Deborah A., 162 Bea, Carlos, 111–13, 116, 190n74 Bear Butte, 91 Becket Fund for Religious Liberty, 67 Begay, Steven, 103 Bellah, Robert, 140, 143, 161 Bembry, John Riley, viii Benally, Klee, 189n58 Bennett, Jane, 195n72 Berglan, Laura, 80–81 Bergson, Henri, 141, 150 Berman v. Parker, 131–32 Berry, Wendell, 9, 114, 128 Bilgram, Akeel, 195n72 Blackmun, Harry, 138 Blomley, Nicholas, 58 Blue Lake (New Mexico), 88, 187n19 Bookchin, Murray, 127–28 Borglum, Gutzon, 10 Boston (Massachusetts), 26 Bowen v. Roy, 92 Breakthrough Institute, 192n6 Brennan, William, 85, 93, 110 Breyer, Stephen, 70–71 Bridges, Ruby, 45 Brooks, David, 154 Brower, David, 117, 129–30, 136, 143 Brynner, Yul, 63 Buddhism, 125, 127 Buono, Frank, ix–xiv, 3, 6 Burroughs, John, 117, 149–51 Bush, George W., x, 65, 67, 111, 198n24 California, 28, 41, 47 Calvin, John, 12; Calvinist ministers, 16 Cannon, Jonathan Z., 120, 149 Carey, James, 76–77 Carson, Christopher “Kit,” 89 Carson, Rachel, 118, 126, 135, 151

Casa Malpais, 84 Cassuto, David, 192n10 cathexis, 183n10 Catholics, 49–50, 72, 98, 157, 160, 164, 173–74n21, 178n13; transubstantiation, belief in, 87 Cavell, Stanley, 17 Center for Biological Diversity, 96, 99 Center for Inquiry, xiii Chaco Canyon (New Mexico), 67, 84 Chelsea (Massachusetts), 26 Chemerinsky, Erwin, 73 Cherokee, 89–90 Cheyenne, 91. See also Tsistsistas Chidester, David, 172–73n12 Choper, Jesse, 57 Christianity, ix, xvi, 11, 24, 26, 41, 47–48, 64, 69, 75, 102, 114, 119, 125–26, 127, 150, 162, 175n52; as religion of time, 114; way of seeing, 2 Christian Right, 3, 8–9, 29, 35, 37, 50, 69, 76, 125–26, 146, 178n7 church and state separation, 3, 7, 181– 82n43; Christmas Wars, 23–25; and Others, 76 Church, State, and Freedom (Pfeffer), 26 City as Text (Duncan), 197n17 civic identity, 37 civic landscape, 55, 68, 71 civility, 30, 32; civil discourse, and uncivil Others, 31; passive pluralism, 49 civil religion, 32, 49, 121, 128, 137–38, 140, 161; active pluralism, 50; land-based spirituality, 21; material presence, 17; spiritual spectatorship, 22; and wilderness, 133–34 civil rights movement, 31 civil society, 16, 121, 128, 152, 164; civil solidarity, 34; and environmentalism, 120, 127; and law, 31; protestant aniconism in, 19 Civil Sphere, The (Alexander), 31 Claremont Institute for the Study of Statesmanship and Political Philosophy, 67

Index 225

Clark, Tom, 82–83, 104, 107 climate change, 146 Clinton, Bill, 188n34 Coconino National Forest, 93, 99 Cold War, 68, 73 colonization, 94 common law: Protestant iconophobia, rooted in, 176n72 Commonwealth Club, 125 Connolly, William, 17 “Conservation in the Anthropocene” (Kareiva), 192n6 Consolidated Edison, 131 constitutional law: secular language of, 2 Cooper, Davina, 181n39 Cosgrove, Denis, 4–5, 17, 172n9 Cover, Robert, 59 Cox, Harvey, 1 Coyne, Frank H., 25–26 Crichton, Michael, 125–26 Cronon, William, 10, 122–25, 127–28, 145, 151, 193n26 crosses, vii–viii, ix, x–xii, xv–xvi, 3, 12, 19–20, 30, 35, 44–46, 51; defense of, 42; at Ground Zero, 161–63; injuries, infliction of, xii–xiii, 40–41; local identity, as symbol of, 47–48; memorialization, of trauma, 163; as religious symbol, 38, 40–41; remembrance, as emblem of, 161; secularization of, x– xiv; as secular symbol, 2, 18, 38, 43 Cross and the Towers, The (film), 161 Crow v. Gullett, 91 Cuddihy, John Murray, 49, 164 cultural geography, 8, 179n20 cultural imperialism, 122 cultural pragmatics, 55 cultural sociology, 120 culture wars, 129 Decalogue. See Ten Commandments Declaration of Independence, 62; and Ten Commandments, 62 Deep Ecology, 127

Delaney, David, 59, 174n26 Deloria, Vine Jr. (Standing Rock Sioux), 92, 114 DeLue, Rachel Zlady, 171n1 DeMille, Cecil B., 63 Descartes, René, 174–75n37 desecration, 3, 83–85, 100, 107, 157 desecularization, 8 differentiation trauma, 49 Dillard, Annie, 9 Directives for New Life (Rudhyar), 141 disenchantment, 10 disestablishment, 50–51 Disney World, 143 Douglas, William O., 21, 90, 129, 132, 135– 39, 142, 145–46, 152, 194n49, 194n51, 195n66; God talk, use of, 133–34; “masculine sublime,” belief in, 194n53 Douzinas, Costas, 176n72 Doyle Peak, 94 Duncan, James, 197n17 Dunlap, Thomas, 124–25 Durkheim, Émile, 6, 29, 35, 63, 140, 158, 161 Earth First!, 124 Earthjustice, 194n47. See also Sierra Club Legal Defense Fund Earthrise (photograph), 154–55 Eck, Diana, 182n44 ecocentrism, 120, 149 eco-fascism, 127 ecosystem nexus theory, 148 Edwards, Jonathan, 13, 124 Egypt, 148 Eire, Carlos, 12 Eisgruber, Christopher, 56 Eliade, Mircea, 123 Elk Grove Unified School District v. Newdow, 59 embodiment, 21, 28, 100, 155, 158, 160 Emerson, Ralph Waldo, 13–14, 141, 150 emotion, 10, 17, 20–22, 25, 29, 31–33, 37, 47, 101, 115, 155

226 Index

Employment Division v. Smith, 96–97 enchantment, 1, 3, 9–10, 14–15, 16, 19, 55, 127, 143, 151, 154–56 Encounters with the Archdruid (McPhee), 136 Endangered Species Act (1973), 90 endorsement test, 56–57, 59–60, 68; functions of, 58 Engelke, Matthew, 32 England, 13 Enlightenment, 21, 100, 115, 143, 152, 174– 75n37 environmental ethics, 142 environmentalism, 117, 118, 123, 129, 132, 135, 140, 146, 151–52, 158; civil society, 120; Jeffersonian democracy, as defense of, 138; law of standing, 148; as religious movement, 124–27, 136 environmental law, xiii, 118, 132, 139, 142– 43, 145–49, 151–52; and landscape, 120; plastic trees debate, 142, 143, 144, 145, 146, 149; religious rhetoric in, 21; and sanctity, 119 environmental politics, 125 Escher, M. C., 6 Europe, 43, 171n5 evangelical movement, 68 evangelical Protestants, 69; as “cruci­ centric,” 41–42 Everhart, Jane, 162 expressivism, 34 Falwell, Jerry, 126 Farber, Daniel, 147 Fessenden, Tracy, 6 fetishism, 87 Fidelis Center for Law and Policy, xii Fifth Amendment: Takings Clause, 132 First Amendment, 7, 24, 54, 84, 86, 91–92, 178–79n19, 187n18; Establishment Clause of, ix, xiii–xiv, 8, 20, 32, 46, 53, 56, 73–74, 89, 177n1; public space, 76–77 Flagstaff (Arizona), 80, 96, 99–100, 104

Fletcher, William, 110–13 Focus on the Family, 68–69 Foreman, Dave, 124 Formations of the Secular (Asad), 173n13 Foster, Larry, 106–7 Four Corners, 96 Francis, Pope, 153–56, 158 Fraternal Order of Eagles, 63, 67–68 Freedom from Religion Foundation, 73 Fremont, John C., 94 Fremont Peak, 94 Friends of the Earth, 88 Gallagher, Elbert T., 25–26, 50 Gatta, John, 175n52 Geertz, Clifford, 48 geopiety, 9, 22, 86; public geopiety, 157– 58; and secularization, 10; as visual problem, 11 Gettysburg National Military Park, 46 Ginsburg, Ruth Bader, 71 Glassroth v. Moore, 61, 63 Glen Canyon Dam, 88–89, 143 goddess worship, 127 God on Trial (Irons), 40 Goldstein, Israel, 24 Grand Canyon, 84, 99, 105 Greenhouse, Carol, 181–82n43 Ground Zero, 46, 161–64 Hamilton, Marci, 190n74 Harris, Victor, 24 Havasupai, 93, 100, 105–6, 189n49 Hawaii, 64, 67 Hecht, Richard, 49–50 Heidegger, Martin, 10 Herberg, Will, 7, 49, 63, 173–74n21 Heston, Charlton, 63 Hetch Hetchy Valley, 9, 129 Hindu American Foundation, 74 Honanie, Antone, 101 Hood, John B., 64 Hoops, Herman R., ix, 3 Hopi, 79–84, 87, 91, 96, 99–101, 107, 109,

Index 227

158, 160; Changing Woman myth, 93, 95; katsina cult of, 94–95, 102, 108, 110, 116; Traditionalist Movement, 189n49 Hopi Cultural Preservation Office, 83, 101 Hopi Salt Trail, 84 Hopi Tribal Council, 107 Horkheimer, Max, 144–45 Horvitz, Dennis, 161 Howe, Mark De Wolfe, 74 Hualapi, 93, 100, 102, 189n49 Hudson River Valley, 131 Humphreys, A. A., 94 Hungary, 43 Hutchison, William R., 7 iconoclasm, 12, 13, 15–16, 19 iconography, 54 identity, 2, 54 idolatry, 4, 19, 161; attack on, 122; and landscape, 11–12; place, question of, 15; Protestant geographic practice, 11–12; in secular landscape, 16 immanence, 16, 19, 128, 143–44, 157–58 Immigration Act (1965), 50 imperial wilderness, 121 incivility, 30–31 In Defense of People (Neuhaus), 126 indifference, 27–28, 178n18 Ingold, Tim, 159–60, 188n43 Inhofe, James, 118 intentional vitalism, 140, 195n72 International Reform Board, 73 Irons, Peter, 40 Islam, 125 Israel, 19, 34 Ivers, Gregg, 177n1 James, William, 113, 116 Jewish communities, 20, 26, 44, 49–50, 74, 164; in Ossining (New York), 34–36 Jewish Social Policy Network, xiii Jewish War Veterans, xiii Jim Crow policy, 57–58

Judaism, 64, 125 Judge, Mychal, 161 Kachina Peaks Wilderness, 96 kachinas, 80, 94–95, 99, 102, 108, 110, 116 Kagan, Elena, x Kahn, Paul, 75 Kaho’olawe Island, 187n19 Kareiva, Peter, 192n6 Karok (tribe), 91 Keane, Webb, 15–16 Kennedy, Anthony, xiv, 70 Kentucky, 60–62 Koch brothers, 146 Krieger, Martin, 142 Ku Klux Klan (KKK), 46 Kuwanwisiwma, Leigh, 101 Kysar, Douglas, 151 LaHaye, Tim, 126 laïcité, 176–77n74 La Jolla (California), 37; La Jolla covenant, 38 Lake Powell, 88, 144 Lakota, 91 landscape, 18, 29, 52, 54–55, 58, 65, 92, 136, 143–45, 165, 174–75n37; act of viewing, 76; and belonging, 46; of cultural survival, 86; as cultural text, 197n17; divine power, symbolic revelation of, 86; and dwelling, 159–60; environmental law, 120; idea of, tension over, 3–4; identity, as extension of, 160; and idolatry, 11–12; legal standing, 152; as material, 17; performative interpretation of, 59; pictorial connotations of, 11; and place-making, 159; profane, search for, 3; in protestant geographical imagination, 11; as quasi-religious concept, 5; and Reformation, 12; religious rhetoric, 9; as religious symbol, 21; sacred, search for, 3; and secular gaze, 15; study of (Landschaftskunde), 172n10; as symbolic screen, 8; as term,

228 Index

landscape (continued) 116; territorial community, 10; territoriality, as implied, 21; uncivil Others, 33, 76; as visual practice, 5, 17; as way of seeing, 3–5; working landscapes, 86 landscape art, 11 landscape iconography, 65 landscape studies, 172n10; and religion, 5 landscape theory, 172n9, 172–73n12 Lane, Belden, 11, 174–75n37 Latour, Bruno, 195n72 “Laudato si’” (encyclical), 153–58 law, 18, 33, 54, 151, 180–81n27; aversive emotions, vehicle for, 164–65; civil and uncivil emotions, 55; civil observers, cultural status of, 55; civil society, 31; geographical imagination, failure of, 85; geographical knowledge, 58; inverse stigmatization, mechanism of, 31–32; myths of, 59; as performative medium, 55, 58; reason, claim of, 75; reasonable observers, 56, 58, 60, 64, 71; religious freedom, 32; as representational medium, 55; semiotic ideology, 16; social function of, 164; as social glue, 151 Left, 53, 122, 154 legal studies, 75 Leopold, Aldo, 118, 128, 136, 138, 144, 151 liberalism, 17, 30, 48, 140, 142 liberal secularism, xv, 50 libertarianism, 125 Liberty Institute, xv Light of Day: Religious Discussions and Criticisms from a Naturalist’s Point of View, The (Burroughs), 150 Lincoln Memorial, 89 Lithwick, Dahlia, xiv Lloyd, Rees, xv Locke, John, 178n18 Lovelock, James, 141 Luckert, Karl W., 89 Lujan v. Defenders of Wildlife, 148 Luther, Martin, 12

Lynch, Gordon, 158 Lynch v. Donnelly, 56–58 Lyng v. Northwest Indian Cemetery Protective Association, 91–93, 97, 100, 109–11, 177n75, 188n34 Madison, James, 183n20 Magna Carta, 62 Manifest Destiny, 10 Mapatis, Frank, 106 Markell, Patchen, 164–65 Marty, Martin, 48, 164 Marx, Karl, 122, 195n80 Masayesva, Vernon, 79, 87 Masuzawa, Tomoko, 172–73n12 materiality, 3, 8, 13–14, 16, 87, 155, 160, 172n9, 176n65 Mayflower Compact, 62 McConnell, Michael, 56–57 McCreary County v. American Civil Liberties Union of Kentucky, 61, 63–64, 67, 71, 77 McKibben, Bill, 114, 117, 187n12 McPhee, John, 129, 136 Meeker, Joseph, 138 Mennonites, 59 Mesa Verde, 84 Midwest, 28 millenarian sects, 49 Miller, Perry, 146 Mineral King Valley, 129–32, 137, 139, 145. See also Sierra Club v. Morton Mitchell, W. J. T., 5, 15, 55, 172n9, 183n9 Modern, John Lardas, 14 Mojave Memorial Cross, 29, 38 Mojave National Preserve, vii. See also Sunrise Rock Moore, Roy, 61 Morgan, David, 13–14 Mormons, 49, 97, 164 Mosaic law, 53, 72 Mount Agassiz, 94, 109 Mount Humphrey, 94, 109 Mount Soledad cross, 38–40, 51 Mount Taylor, 84

Index 229

Muir, John, 9, 13–14, 116–17, 129–30, 133, 135, 137, 139, 149–51 Murphy, Bruce Allen, 137 My Wilderness: East to Katahdin (Douglas), 135 Nabokov, Peter, 90, 115 Nash, Roderick Frazier, 135, 146, 191n1 National Council of Jewish Women, 73 National Gallery, 72 National Mall, 46, 65, 137 National Park Service, vii–viii National September 11 Memorial and Museum, 161 Native Americans, 20–21, 84, 93, 96–97, 109, 113, 115, 186n3, 186n8, 190–91n83; collective memory, 85; language of dwelling, use of, 116; religions of space, 114; sacred lands, legal rights to, 87–88; sacred sites, regulation of, 8; spiritual gaze, 86–87. See also individual tribes nature, 86, 121, 124, 127–28, 136, 140, 146, 150, 156; and abortion, 157; legal standing doctrine, 138–39, 142; secularization of, 11–12; as a sign, 13. See also wilderness Nature (Emerson), 141 Navajo, 19, 91, 93–94, 97, 103, 116, 157–58; Blessingway ceremony, 95, 100; Holy People, 88–89, 95, 100; Medicine Bundles, 95–96, 107–8; Shonto community, 88–89 Navajo Nation, 104 Navajo National Monument, 84 Navajo Nation Historic Preservation Department, 103 Navajo Nation v. USFS, 97, 115–16 Nazis, 127 Nead, Lynda, 176n72 neopaganism, 127 Neuhaus, Richard John, 28, 126, 128, 178– 79n19, 193n31 New Age, 126–27, 141

New England, 13, 28, 33, 36 New York (New York), 26, 134, 163 New York Times (newspaper), 153–54 Nez, Norris, 104 North American Review (journal), 138 Nussbaum, Martha, 9, 177n75, 183n20 O’Connor, Sandra Day, 62, 64–65, 70–71, 75, 85, 91–92; endorsement test, 56, 59–60, 183n20 Of Men and Mountains (Douglas), 133–34 Olwig, Kenneth, 174n26 Orsi, Robert, 159 Ossining (New York), crèche controversy in, 23–24, 25, 34, 54; Jewish community in, 35–36 O’Sullivan, Timothy, 94 Paiute, 189n49 Palestine, 19 pantheism, 141 Panzarino, Mark, 162 Parsons, Talcott, 183n10 Paulson, Philip, 40 People for the American Way, 73 Pew Forum on Religion and Public Life, 54 Pfeffer, Leo, 23–24, 26–28, 32, 34, 48–49, 51, 54, 177n1, 178n13, 178–79n19 Pietz, William, 187n15 Pinchot, Gifford, 9 place: characterization of, 71; as contested, 55; as home, 154, 164–65; material agency of, 15–16; as performative achievement, 76; ventriloquism of, 55 placelessness, 87, 114 place-making, 3, 4, 8, 9, 11–12, 15, 27, 43, 46, 48, 50, 55, 77, 155, 159 Plessy v. Ferguson, 59 pluralism, 8, 14, 34, 48, 164, 182n44; active versus passive, 49–50; and intolerance, 51; religious freedom, 50 Posner, Richard, 194n49 Prescott (Arizona), 99 Preston, Bill “Bucky,” 79–87, 101, 103

230 Index

Protestant aesthetic, “niceness” of, 49–50, 164 protestant aniconism, 19 Protestant–Catholic–Jew (Herberg), 7, 49 protestant culture: in Anglo-American legal traditions, 176n72; cultural norms, 164; definition of, 171n5; religious Others, encounters with, 7, 15 Protestant establishment, 26, 60; civil society, community circle of, 49 Protestantism, 11, 13–14, 50, 57, 173–74n21; Protestant impulse, 175n52; Protestant religiosity, 14–15; Protestant space, 159; Protestant spectrum, and “true religion,” 175n58; and Protestant tradition, 87; sola scripture, doctrine of, 13 Protestants and Other Americans United for the Separation of Church and State, 24. See also Americans United public life: uncivil Others, 33 Public School Religion, 26, 51 public space, 43, 45, 89, 165; civic identity, 37; civil sphere, 46; First Amendment, 76–77; meaning of, as changed, 51; ownership of, 40–41; religious groups, claims on, 50; as religiously neutral, 77; religious symbols, 32–33 public square, 27–28, 32–33, 63, 70–71; religious character of, 7; religious influence, protection from, 2–3; as sacred, 9 punctum, 43–44, 46, 51 Purdy, Jedediah, 146–47 Puritans, 13, 124–25, 178n18 Rackman, Emanuel, 24 Rainbow Bridge (Utah), 88–89 Randall, Vincent (Hastiin Nazelze), 102–3, 115 Rasure, Nora, 99, 108–9 Reformation, 12 Rehnquist, William, 61, 69–70, 148 religion, 9, 27, 50, 87, 151; geography of, 172n12; making of places, 159; public display of, 8; Religion Clauses, 57;

religious environmentalism, 121, 191n2; religious icons, 46; and science, 155, 157; and wilderness, 146 religious freedom, 37, 44, 50, 59, 87; and law, 32, 56–57; Native Americans, 84–85, 88–91; sacred lands, 91, 112 Religious Freedom Restoration Act (RFRA), 96–97, 99, 111, 113, 164 religious nones, 48 religious symbols, 28, 32, 35, 38, 40–41, 47, 56; behavior, effects on, xiii Reynolds v. U.S., 97 ritual, 16 Roberts, John, xi Roberts, Mark D., 30 Robertson, Pat, 37, 67, 126 Romanticism, 86; Romantic environmentalism, 10 Roosevelt, Theodore, 135 Roosevelt Dam, 84 Rosenblatt, Paul G., 99, 109–10, 189n65 Rousseau, Jean-Jacques, 53 Rudhyar, Dane, 141, 147 rule of law, 54, 67 Sachs, Aaron, 122 sacramental space, 13 sacred: as constitutional problem, 4; visual regulation of, 3 sacred iconography: legalization of, 54 sacred lands, 88, 97, 107, 115; and secularism, 114 sacred landscapes, 2, 90, 115, 157; spiritual gaze, reduction to, 92 sacred space, 1, 6–7, 19, 84, 157, 158, 161, 176–77n74; citizenship and civil society, 9; iconoclasm of, 12; on public land, 85, 87; and secularism, 9, 22; secularization and desecularization of, 8; as term, 157 sacred symbols, 29 Sager, Lawrence, 56 Sagoff, Mark, 145–47, 196n83 Saint Francis of Assisi, 144, 155–56

Index 231

Salazar v. Buono, x, 2, 4 San Diego (California), xv, 40; Jewish community in, 38 Sandoz, Henry, viii–ix, xi, xiv–xv Sandoz, Wanda, viii–xiv, xv San Francisco Peaks (Arizona), 80–85, 87, 93–97, 99, 105, 110–13, 116, 152, 158, 160, 188n43, 189n49; and desecration, 107; desecration, and collective suffering, link between, 102; and pain, 100– 101, 103; Peaks trial, 100–109; pollution of, 100–101, 103–4; spiritual genocide, 104; as Traditional Cultural Property, 98 Sax, Joseph, 147 Scalia, Antonin, xiv, 62–63, 70–71, 74, 77, 97, 148, 196n93 Scenic Hudson Preservation Conference v. FPC, 131–32 Schneider, Janice, 84, 87, 106 Schrepfer, Susan, 134, 194n53 Schwarz, Allen, ix Scottish Presbyterians: camp meetings, 13 Seattle (Washington), 64 Secular Age, A (Taylor), 173n13 Secular City, The (Cox), 1 secular gaze: and landscape, 15 secular iconography, 54 secularism, xvi, 8, 17, 19, 22, 161, 164–65; affective regime of, 46–47; aversive affect of, 18; Christian worldview of, 114; game of signs, 21, 47; protestant culture, 14–15, 21; Public School Religion, 26–27; questioning power of, 6, 21, 87; sacred lands, 114; sacred space, 9; secular liberalism, 10, 157; secular neutrality, 30; secular revolution, 150–51; secular vision, 3; secular way, as way of seeing, 2; theology of signs, 176–77n74; ubiquity of, 5; as way of being, 6; as way of making and imagining places, 3 Secularism and Its Critics (Bhargava), 173n13

secularization, 8, 19, 31, 49, 51, 173n13; and disenchantment, 10; and geopiety, 10; of nature, 11–12 secular landscape: codifying of, 93, 100; and law, 7, 16; place, material agency of, 16; public space, mark on, 49; as sublated, 16; transfiguring of, 12; as way of feeling, 22; as way of seeing, 22 secular law, 51–52, 93; and agency, 87; cultural logic of, 4; protestant semiotic ideology of, 20 secular liberalism, 10, 157 secular neutrality, 30 secular revolution, 150–51 secular vision, 3 Sehat, David, 173–74n21 Sekaquaptewa, Abbott, 94 Sekaquaptewa, Emory, 101–3, 188n42, 189n65 semiotic ideology, 15, 20–21, 28, 87; law, as engine of, 16 Sequoia National Park, 130, 132 Sequoyah v. Tennessee Valley Authority, 89, 91 Shackelford, Kelly, xv Sherpa San Harold Horpa, ix. See Hoops, Herman R. Shils, Edward, 143 Shintoism, 141 Shirley, Joe Jr., 104 Shoemaker, Gene, 97 “Should Trees Have Standing?” (Stone), 139 Sierra Club, 96, 99, 129–30, 132–33, 136 Sierra Club Legal Defense Fund, 131, 140, 194n47. See also Earthjustice Sierra Club v. Morton, 21, 121, 129, 133, 136, 139, 148, 194n47, 195n66 Six Rivers National Forest, 91 Smith, Christian, 69, 150–51 Smith, Michael W., 161, 198n24 Snowbowl Effect, The (documentary), 189n58

232 Index

Snyder, Gary, 124 social performance, 55 Souter, David, 62, 71–73 South Dakota, 91 spiritual gaze, 100, 112; sacred lands claims, 91–92; solitary viewer, 86, 116 spiritual genocide, 104 spirituality, 85–86, 93; Romantic “cult of the sublime,” 14 Springerville, 84 Sri Lanka, 148 standing doctrine, xiii, 17, 119, 132, 136, 140, 192n10, 195n77; and landscape, 152; for nature, 138–39; as way of seeing, 120 Star Wars (film), 158 Stevens, John Paul, xiv, 71 Stewart, Potter, 132 stigmatization, xiii, 24, 57, 71, 128; inverse, 32 Stoll, Mark, 191n2 Stone, Christopher, 139–41, 142, 143, 145– 47, 152, 195n77 sublation, 13–14; secular landscape, 16 Sullivan, Winnifred Fallers, 7, 50–51, 171n5 Sunrise Rock, vii, xi, 2–4, 6; cross on, vii– x, xii, xiv, xvi; rededication ceremony, xv; removal of, xv; stupa at, ix. See also Mojave National Preserve “Superego and the Theory of Social Systems, The” (Parsons), 183n10 Supreme Court, 56–58, 60, 62, 71–72, 74– 75, 90–91, 93, 97, 109, 113, 149; as bully pulpit, 133; civil spectatorship, model of, 20 Taoism, 127, 141 Taos Pueblo, 88, 187n19 Tarlock, Dan, 142, 147 Taylor, Bron, 193n26 Taylor, Charles, 7, 10, 34, 173n13, 191n1 Tellico Dam, 89; Chota capital, 90 Ten Commandments, 8, 18, 20, 28, 53–56, 58, 60, 63–65, 69–74, 76, 160; Ameri-

can law, 61, 67–68; and Declaration of Independence, 62 Ten Commandments, The (film), 63 Tennessee, 90 Tennessee Valley Authority (TVA), 90 territorial iconicity: religious politics, 46 territoriality: and landscape, 21 Texas, 64–65, 67, 69–71, 73–76, 184n31 Texas Brigade, 64 “There She Stands” (Smith), 161, 198n24 Thomas, Clarence, 70–71, 74 Thoreau, Henry David, 1, 4, 9, 14, 124, 135, 175n52 Tillich, Paul, 143 Timlin, Robert J., ix–x Tolowa, 91 totemism, 16, 87 transcendence, 11, 14, 86, 142–43 transcendentalism, 147, 149 Tribe, Laurence, 57–59, 118–19, 121, 142– 47, 195n79, 195n80, 196n83 “Trouble with Wilderness, The” (Cronon), 122, 127 Tsistsistas, 91. See also Cheyenne Tuan, Yi-Fu, 9–10 Turner, Tom, 131 Turner, Victor, 171n1 TVA v. Hill, 90 Two Tracts on Government (Locke), 178n18 Udall, Stewart, 131 Unger, Roberto, 195n80 United States, xiv, 3, 7, 14, 23, 26, 34, 48, 50–51, 53–56, 60–61, 63, 67, 69, 77, 85, 88, 98, 112, 117, 133, 138, 151, 159, 181–82n43, 187n18, 187n19; “buffered self ” in, 16; Calvinist obsession in, 146; as Christian nation, 37, 75; pluralism in, 49; Protestant-Secular continuum in, 6 Updike, John, 23 US Forest Service, 82–83, 96–97, 108–9, 111, 131, 195n66 Utah, xv, 14

Index 233

Van Orden v. Perry, 20, 54, 61, 63, 67, 71, 76–77 Van Orden, Thomas, 64–65, 69–71, 73–74, 184n31 Vaughn, Charles, 102 Veterans of Foreign Wars (VFW), viii–ix, xii, xiv–xv visual culture, 120 Wallbuilders, 69 Walsham, Alexandra, 11–13 Walt Disney Corporation, 129–31, 195n66 Watt, James, 126 “Ways Not to Think about Plastic Trees” (Tribe), 118, 142 Weber, Max, 10, 49, 143 Week on the Concord and Merrimack Rivers, A (Thoreau), 4 Wenger, Tisa Joy, 187n18 Western Apache, 93, 115 Wheeler Survey, 94 White, Lynn Jr., 11, 139, 142–44 White, Richard, 158, 187n12 White Mountain (tribe), 100, 107 White Mountain Apache Indian Reservation, 109 White Vulcan Mine, 98–99, 189n58 Whitman, Walt, 150 Why I Am Not a Secularist (Connolly), 173n13 Wild Earth (journal), 124 wilderness, 19–20, 120, 124, 126, 135–36, 139, 152; academic Left, 122; Christian nationalism, resemblance to, 127–28; civil religion, 133–34; civil society, 128;

cult of, 118, 122; cultural values, as expression of, 145–46; Deep Ecology, 127; intrinsic value of, 144; liberal critique of, 10; moral encounter, place of, 121; as political theology, 123; and religion, 146; as religious concept, 191n1, 192n6; as religious experience, 117–18; as sacred landscape, 21, 118, 123. See also nature Wilderness and the American Mind (Nash), 135, 191n1 wilderness preservation movement, 86, 191n2 Wilderness Society, 138, 191n2 Williams, Raymond, 21 Williams, Roger, 74 Wilson v. Block, 91, 96 Wisdom Sits in Places (Basso), 115, 190– 91n83 Wise Use movement, 124, 126 Wittgenstein, Ludwig, 123 World Trade Center, 161 World War I, ix–x, xv, 73 Worster, Donald, 133 Wright, John Kirtland, 9 Yakama Indians, 187n19 Yavapai Apache, 100, 102 Yellowstone National Park, 137 Yosemite (Muir), 149–50 Yosemite National Park, 14, 128 Yurok (tribe), 91 Zuni Salt Lake, 84