How does the law shape the category of (free) religion, and by which mechanisms does this shaping occur? Building on conversations started at the Centre for Religion, Conflict and Globalisation’s recent conference, ‘Reimagining Difference: Being, Thinking and Practicing Beyond Essentialism’, this collaborative Religion Factor and Religion: Going Public blog series explores law’s approach to – and creation of – religion and religious rights. In this post, the Centre's Dr Méadhbh McIvor responds to Helge Årsheim by reflecting on sex, politics, and legal tedium.

My first thought upon reading Årsheim’s call to engage with legal tedium and bureaucracy was of an academic tool that is equally dull, but highly useful: the trusty footnote. More specifically, I thought of a two-sentence footnote buried in the second chapter of my PhD thesis.

My doctoral research focused on the rise of Christian-interest litigation in the United Kingdom. Footnote fifty-five is one of almost two hundred such notes dotted throughout the resulting dissertation, the majority of which I had relegated below the line due to questions of relevance. Most contain a nugget of information or context that felt significant enough to be included in the thesis, but not significant enough to be included in its main text. Footnote fifty-five, though, was different. I had pushed these words from paragraph to footer not because they weren’t relevant enough to be included in the body of the chapter, but because their content – a reference to a procedural requirement of the UK’s Human Rights Act (HRA) – simply wasn’t interesting enough.

As a social anthropologist, my preferred methodology is that of ethnography, or participant observation. In the words of a famous anthropological ancestor, Bronisław  Malinowski, the goal of the ethnographer is to ‘grasp the native’s point of view’ through participating in her social world: learning her language; performing her religious rituals; and living in her community, which becomes the anthropologist’s ‘field’. Given my interest in the growing number of British Christians going to court to assert (what they frame as) their religious ‘rights’, much of my fieldwork took place in the public galleries of courtrooms throughout the UK. One such gallery can be found in the lower ground floor of London’s ornate Royal Courts of Justice, where my evangelical interlocutors fought a case in the spring of 2013.

In the interests of maintaining boredom, I’ll spare the juicy details – suffice to say the case involved an incendiary mix of sexuality, political intrigue, freedom of religion, and (then London Mayor, now UK Foreign Secretary) Boris Johnson – and will instead focus on the events that led to footnote fifty-five. The case had been brought by an individual claimant against a regulatory body. His complaint related to this body’s handling of a request by a Christian charity. Given that the individual claimant was not party to the original dispute (which was between the regulatory body and the Christian organisation), the question arose as to whether or not the claimant could demonstrate locus standi, or standing – that is, whether or not he could show a sufficiently close connection to the dispute to give him the right to take legal action.

According to Section 7(3) of the HRA, which governs the law of standing in such cases, it seemed he did not. The Act specifies that an individual can only contest the action of a public authority ‘if he is, or would be, a victim of that act’. The presiding judge was clear that the claimant had not reached this threshold. As such, it was up to the regulatory body to decide whether or not to press the point. In the interests of time, they decided against, allowing the judge to substitute the original claimant for a Christian organisation to which he was affiliated (albeit still not the original ‘victim’ of the decision he was hoping to challenge).

As a dutiful ethnographer, I recorded the S.7(3) discussion with care. When the time came to turn my notes into a thesis chapter, however, I wondered why I’d been so thorough. Having determined that the deliberations over standing were, in Winnifred Fallers Sullivan’s words, ‘the kind of question that only a lawyer could love’[1], I relegated the discussion to a footnote and returned the ethnographic gaze to (what seemed to be) the real issues at play: the politics of sexual orientation; the limits of tolerance; the enigma that is Boris Johnson. Thus was footnote fifty-five born.

But what if the defence had argued the point? Årsheim’s piece prompts me to think about how this case – and, indeed, many others – might well have turned on a technicality. After all, the defence never accepted that either the individual claimant or the substituted organisation had been directly affected by the decision of the regulatory body. According to my field notes, they only agreed to the substitution on the grounds that they were ‘anxious to get rid of this case’. Had they been less so, the case might have fallen at the first hurdle.

The contents of footnote fifty-five are, perhaps, not quite what Årsheim has in mind when he asks us to reflect on the ways in which civil servants and bureaucrats define and govern the category of religion. The debate over standing tells us nothing of how the drafters of S.7(3) imagined its eventual use. Yet it points to the disconnect he highlights between what actually matters – that is, the technical regulations, red-tape, zoning laws, and directives on which a case may turn – and what non-lawyers, including legal anthropologists, think their readers will find interesting or important. My notes record the claimant’s lawyer stating that he had not expected the issue of standing to be pursued ‘with such vigour’. While one might expect more of a legal professional, I think many members of the public would have been equally surprised by the importance of what, to a layperson, seems a mere technicality. Given the subject matter at hand, they might ask, is all this talk of Section 7 really necessary? Couldn’t we just skip this bit, and get down to discussing sexual orientation, religious freedom, and Boris Johnson? Isn’t that what really matters? But procedure is procedure, and rules are rules.

As Årsheim, glossing Latour, notes, most of us have only the vaguest understanding of the technical regulations that shape our lives. This applies as much to their content as it does the (deliberately?) mystifying processes through which they are reached. Before we can get to the juicy stuff – the cases that determine the limits of free religion, shaping our understanding of both ‘freedom’ and ‘religion’ in the process – we have to meet the technical requirements. And in an age of bureaucracy, the fine print within which these requirements are to be found is ever multiplying.

I have great sympathy, then, with Årsheim’s call for scholars of law and religion to pay closer attention to ‘the nuts and bolts’ of legal machinery: the regulations, disclaimers, circulars, and directives that shape the possibility of religious freedom. Indeed, I take a more upbeat approach than Årsheim himself: where he imagines a scholastic abyss, I see space for up and coming graduate students. The groundwork is already underway, with new theories of bureaucracy and administration ready to be tested, applied, and challenged by those working in the field of law and religion. For example, while social scientists have long been familiar with Max Weber’s ‘iron cage’, the next generation of scholars might supplement their investigations of bureaucracy with more recent work, such as David Graeber’s (2015) The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy.

Sympathetic as I am, though, I worry that I lack the attention span necessary to contribute to Årsheim’s project myself. Anthropologists wax lyrical about the importance of recording the quotidian, the repetitive, and the boring, but our monographs reflect an enduring fascination with ritual high points, dramatic confrontations, and moments of collective effervescence. When a dwindling word count forces me to choose whether to focus on the politics of sexual orientation, the limits of free speech, a politician’s bid for re-election, or tedious deliberations over locus standi, I confess to knowing in advance what will end up in a footnote – and it’s unlikely to be Boris.

[1] Sullivan, W. F. 2010. Religion naturalised: the new establishment. In After pluralism: reimagining religious engagement (eds) C. Bender & P.E. Klassen, 82-97. New York: Columbia University Press.