The Impossibility of Religious Freedom

New Edition

Winnifred Fallers Sullivan

• Editorial: Princeton University Press
• Año: 2018
• ISBN:
  9781400890330
• Categoría: Derecho
• Categoría: Derecho público

The Constitution may guarantee it. But religious freedom in America is, in fact, impossible. So argues this timely and iconoclastic work by law and religion scholar Winnifred Sullivan. Sullivan uses as the backdrop for the book the trial of Warner vs. Boca Raton, a recent case concerning the laws that protect the free exercise of religion in America. The trial, for which the author served as an expert witness, concerned regulations banning certain memorials from a multiconfessional nondenominational cemetery in Boca Raton, Florida. The book portrays the unsuccessful struggle of Catholic, Protestant, and Jewish families in Boca Raton to preserve the practice of placing such religious artifacts as crosses and stars of David on the graves of the city-owned burial ground. Sullivan demonstrates how, during the course of the proceeding, citizens from all walks of life and religious backgrounds were harassed to define just what their religion is. She argues that their plight points up a shocking truth: religion cannot be coherently defined for the purposes of American law, because everyone has different definitions of what religion is. Indeed, while religious freedom as a political idea was arguably once a force for tolerance, it has now become a force for intolerance, she maintains. A clear-eyed look at the laws created to protect religious freedom, this vigorously argued book offers a new take on a right deemed by many to be necessary for a free democratic society. It will have broad appeal not only for religion scholars, but also for anyone interested in law and the Constitution.Featuring a new preface by the author, The Impossibility of Religious Freedom offers a new take on a right deemed by many to be necessary for a free democratic society.

CHAPTER 1

Outlaw Religion

THE EVENTS LEADING UP TO the trial in the Warner case took place in the City of Boca Raton, which is located in the southern Florida county of Palm Beach. Boca Raton, or Boca Ratones, Spanish for “the rat’s mouth” (or perhaps “the pirates’ cove,” describing a natural harbor on the southeastern coast of Florida in which Spanish ships may have taken shelter during the sixteenth and seventeenth centuries),¹ was, like much of southeastern Florida, a swampy backwater until the twentieth century. Only sixty years ago, Boca Raton had a population of nine hundred and was dominated by a recently built air base. Today Boca Raton is a flourishing city of 75,000 residents, boasting a federal courthouse and a university: Florida Atlantic University.

The first modern development² of that part of southern Florida, about forty-five miles north of Palm Beach, began at the end of the nineteenth century. First came the railroad and then, for a short time, there was a dream of big agricultural business. Led by Joseph Sakai, an enterprising young Japanese American from New York and a graduate of New York University, a group of Japanese farmers emigrated to Boca Raton in the early twentieth century with a view to establishing pineapple plantations. They called their settlement Yamato.³ Disease and bad weather dashed their plans, and the town remained a small agricultural community through the first decades of the twentieth century. The City of Boca Raton was formally incorporated in 1925 but remained economically dependent on local farming and tourism until midcentury. In the 1960s IBM led the development of light industry in the town.

Both before and after World War II, Boca Raton has also been a seasonal destination for northern industrialists seeking luxurious resort-style living, as well as for ordinary Americans on vacation. Addison Mizner, a New York society architect of the 1920s who designed many of the architecturally significant buildings in Palm Beach, purchased 17,000 acres of land and designed a private hotel and residence complex for Boca Raton. His plans, which would have made Boca Raton a posh private resort town, were never fully realized because of the Depression. An exclusive resort community was eventually built, however, and Mizner’s design and vision persist in the Mediterranean-style architecture that dominates Boca Raton today.⁴

In addition to polo and golf, attractions for the rich, Boca Raton has also been the home of a briefly successful safari park, Africa USA (1953–1961) and a nationally known evangelical conference center, Bibletown USA (originally established in 1950 and whose successor today is Bibletown Community Church),⁵ both of which brought visitors to town. Bibletown USA was sued in 1963 by the city of Boca Raton and by Palm Beach County for violating the conditions of its tax exemption. In a 1968 ruling appealing the granting of summary judgment, the court quoted the lower court’s order: “The point is accented by repeating: Because of the nature of its solicitation for patronage it was impossible to determine whether people were in attendance for religious purposes, or as tourists in search of entertainment offered, or as investors.”⁶ According to a former mayor from the 1980s (the husband of one of the plaintiffs in the Warner case), Boca Raton today has more golf courses per capita than anywhere else in the world.⁷ Until the 1960s, then, Boca Raton was a small town with a seasonal and at times socially prominent resort community. There was also a small black community, known as Pearl City.⁸

The 1970s brought a real estate boom across South Florida. Since then, Boca Raton has developed into a largely wealthy enclave with strict zoning and gated communities, dominated by neo–Spanish colonial architecture. In 2003 its website boasted:

Boca Raton is known nationally and internationally as an originator in the area of comprehensive zoning. Both the low density, i.e. dwelling units per acre, character of the City and the innovative Park of Commerce Industrial Park have influenced development around the country. The sign code, which was initiated in the late 1960’s, gives the City a unique look with minimal commercial intrusion into landscaping and streetscapes. . . . Because of its initiative, the city has reaped the benefits of effective land use planning—a stable tax base with increasing property values.⁹

The City spent $1 million in the late 1970s unsuccessfully defending a growth cap indended to protect its carefully nurtured character.¹⁰

The Warner case arguably concerns Boca Raton’s effort to extend its aesthetics, its strict zoning laws, and its concern for property values to the city cemetery, the cemetery with which the Warner case is concerned. The cemetery, now almost ninety years old, originated in 1916, on one acre near the water, land that was purchased specifically for the purpose of the foundation of a cemetery. It was later moved twice before being established at its present site. The first move was because of development of the land for the Boca Raton Resort in the 1920s. The second move, in 1944, was to accommodate the building of a runway for an army air base established for training radar officers. The second move also displaced residents of Japanese descent and poor black families.

The moving of a cemetery is not uncommon in the United States. Cemeteries have a more peripatetic life and less legal protection than might be expected. One must abandon any notion that bodies lie permanently in consecrated ground. Dead bodies, like living ones, are on the move, perhaps particularly in Florida.¹¹ Since the second move of the Boca Raton Cemetery and the closing of the army base, the City has grown up around the originally suburban location.¹² The cemetery is now located in a residential section of Boca Raton.

The present Boca Raton Cemetery is approximately 21.5 acres in size. It can accommodate more than 10,000 “in-earth” burials.¹³ The cemetery lies next to the St. Joan of Arc Catholic Church, founded in 1956, and is close to a well-frequented highway. The older part of the Boca Raton Cemetery, that part which has been moved twice, contains upright stone monuments of various sizes and shapes shaded by large trees. A photograph of this part of the cemetery is featured on the city website.¹⁴ The newer part of the cemetery, that part with which the Warner case is concerned, has small lots placed closer together to maximize income and the efficient use of the space for the growing city.

The newer part of the cemetery was designed as a “memorial garden,” that is, a cemetery with markers laid flat on the ground and without vertical monuments, consistent with contemporary practice as described by industry experts during the trial. In such memorial gardens, and in the Boca Raton Cemetery since 1961, “monuments” may consist only of small flat identifying markers, or plaques, flush with the ground. These plaques are often constructed with detachable flower vases that, when inverted, fit into a hole in the marker designed for that purpose. The expectation is that the flower vase will be used only on anniversaries and holidays. Except when the flower vase is in use, the grave site would be entirely flat, and invisible from a distance.

The memorial-garden style of cemetery, the style of the newer section of the Boca Raton Cemetery, is popular for both aesthetic and practical reasons. The clean, uncluttered sightlines of such cemeteries are attractive to some. Death is anonymous, euphemized, and blurred. The grave, in such a setting, is also understood to be “natural,” that is, it is understood to be continuous with the natural setting, facilitating “reconciliation with the natural environment.”¹⁵ Furthermore, it is claimed that cemetery workers can more easily mow the lawn and maneuver both digging and mowing equipment as graves are dug, filled, and maintained. (Graves in the cemetery are dug with a backhoe, after which a legally required concrete or metal liner weighing up to two tons is installed before the burial. The liners preserve the structural integrity of the cemetery, in part for the safety of the cemetery workers.)

Olan Young, sexton¹⁶ of the Boca Raton Cemetery during the 1980s, testified concerning the reason for limiting the memorials to flat monuments:

All modern cemeteries are into flat markers because it’s so much more cost effective and it’s safer. They can run mowers over an open field of grass very easily. . . . The way they’re doing it now with the flat markers and everything cut down low you can mow over the whole works, even over the markers . . . and that’s the way all modern cemeteries are designed. You go out to the other cemeteries you won’t find anything sticking out from the ground. It looks kind of cold but that’s the way these cemeteries are.¹⁷

Experts at the trial testified that the industry standard today is the memorial garden.¹⁸

For the short period of the Warner trial, this rather mundane and common enough space, a small undistinguished cemetery beside a well-frequented city thruway, was the subject of heated debate. On one side were advocates of a modern, clean, secular aesthetic and the convenience and efficiency of city management. On the other side was a modestly flourishing resistance, a protest demanding room for another kind of religion and another kind of government, one that the city’s experts and lawyers, as well as the judge, quaintly termed “cemetery anarchy.”

The Boca Raton Cemetery is managed by the City Parks Department, but sales are handled by the Boca Raton Mausoleum Company, a private outfit that has built the mausoleums in the cemetery and gives a percentage of its revenue to the city. Testimony at trial showed that the cemetery has annual sales of about $1 million and an annual budget of approximately $500,000. Cemetery rules provide that the purchaser of burial rights in the cemetery receive a certificate of title and a list of regulations. (A copy of the Boca Raton Cemetery Rules and Regulations is reproduced in Appendix A and available on the city website.) The Boca Raton purchaser, as is typical in U.S. cemeteries, does not own the property but owns only the “exclusive right of burial of the human dead in that certain parcel of land.”¹⁹

The right of burial in the Boca Raton Cemetery acquired by a purchaser of one of its plots is subject to the following limitations:

1. That the burial right herein granted will be used only in conformity with the Cemetery Rules and Regulations as they may be from time to time adopted or amended.

2. That the property herein described shall forever remain under the exclusive control of the [the City] for the purposes of care and maintenance.²⁰

Burial lots are 3′ 2″ by...