Cemetery Anarchy
Winnifred Fallers Sullivan
November 13, 2025
The book for which I am best known, a book about a 1999 Florida religion case, is entitled The Impossibility of Religious Freedom (2005). It is a provocative title, often misunderstood, I think. It was not the title that I had wanted for the book. My working title was “Cemetery Anarchy.” The Impossibility title was the title chosen by the press. Probably the editor was right. Few would have read a book called “Cemetery Anarchy”—and I would not have had a career of any kind had it been titled “Cemetery Anarchy!” I advise you to take your editor’s advice on this one!
But it nags at me. There remains a sense in which my title was both truer to the book and truer to the phenomenon I was trying to describe. Let me explain.
The Florida case discussed in the book, Warner v. Boca Raton, concerned the threatened removal from a city cemetery of home-made monuments placed on the graves of deceased family members by the plaintiffs—in defiance of regulations limiting memorials to small flat plaques. Miriam and Richard Warner, and other family members of those buried there, argued that prohibition of vertical monuments “substantially burdened” their practice of religion in violation of the then brand-new Florida Religious Freedom Restoration Act. The city argued that plaintiffs could not be “substantially burdened” by their removal because they were not legally “required” by their religious traditions to place vertical monuments on the graves. Only the prohibition of acts prescribed in religious law, they said, should count as a substantial burden on religious freedom. The legal question at issue in the case was whether what the plaintiffs had done on the graves was religion within the meaning of the statute.
Five academic experts on religion testified during the one-week trial! Including myself. Three for the plaintiffs and two for the City of Boca Raton. We each gave an account of what we saw in the cemetery, first in a written report, and then, later, at trial. Anarchy was the word used in the pretrial report filed on behalf of the city by Nathan Katz of Florida International University. Professor Katz described the DIY memorials as being a part of what he called the “little” tradition—folk religion, in other words—oral and female and home-based, as he explained. Katz further said that “If we accept all ‘little tradition’ customs as valid and binding in the same way that ‘high tradition’ laws and doctrines are, [that is, he said, those that are textual and male and institutional], then we run the danger of falling into a relativism bordering on anarchy.” For this first case under the Florida RFRA, written religious law, clerically administered, was needed, it seemed, in order to define protected religion, so the city’s academic experts, Nathan Katz and Daniel Pals, supplied it. For Pals, the plaintiffs’ memorials fell on the periphery of a religious field whose center was what should be protected.
Katz’s word, “anarchy,” was adopted by the defense counsel in his cross-examination of me (I was an expert for the plaintiffs), and later by the judge, to express their evident frustration with the situation on the ground. For the city attorney and for the judge, as for Nathan Katz, removing the home-made memorials was necessary to prevent anarchy. The city’s lawyer, on cross, asked me to concede that what I had described as the very epitome of American religion—that is, the diverse and moving home-made assemblages on the graves—was, in fact, “cemetery anarchy.” I responded that I thought that what they called the anarchy of the Boca Raton cemetery was something like what the Constitution required—and what many, perhaps most, Americans would understand to be religious freedom. I thought that what we were seeing in the cemetery was American religion—at its best, maybe. Katz’ and Pals’ versions, deferring, as they did, to church and state, seemed un-American to me.
At the time, going back to book titles, the presence of five religion scholars in the courtroom, our many differences, as well as what was often lost in translation for the lawyers and the judge, it seemed to me that the trial invited a religious studies critique of the law—that is, a critique based in our then somewhat obsessive preoccupation with the word, its genealogy, and its impossibility. Yet I think now that in some ways that focus was a distraction from what really mattered. Grieving, resourceful, and civic-minded Americans had creatively re-worked their received traditions to honor their deceased relatives—and an American court said it was not religion! It was outrageous. Not only because the court—and some of the religion experts—were parsimonious with the word—but because contained in that cemetery was an otherwise religion-in-law—what I have elsewhere called an alternative churchstateness—or vernacular political theology.
So . . . what exactly was going on in that cemetery that was so threatening to the court and to the religion professors? I want to insist that what was revealed in that trial was not so much the instability of the word religion as a basis for the legal regulation of religion—that is the case everywhere with the use of the word religion in law—as with other legal words—but it was rather the denial that free religion, folk religion, if you like—could support a serious political theology. The court and the city’s religion experts were willing to contain that religion through the use of a political theology from above, notwithstanding its anachronism in the US context where all religion is arguably, by definition, what Katz called “little.”
Returning to the Boca Raton cemetery, then, and to the care of the dead, which is surely one way in which to mark the presence of religion.
In my Impossibility book I focused primarily on the way in which what I called a small “p” protestant version of religion dominates the law’s legal imagination, that is religion that is individual, chosen and believed, rather than communal, received, and enacted. Yet, if one looks closely at the testimony in the cemetery case, the plaintiffs themselves were not asking for individual accommodations based in idiosyncratic readings of theology, as is frequently the case today. They were collectively performing historically rooted versions of their religious traditions, with an eye out for their very diverse local community. They were resisting the statism of the city’s sanitized standardization and doing, I would like to say, the work of non-establishment.
As I embark on a new project to describe non-establishment, it is the anarchic community of the plaintiffs that I will have in mind. Taking a page from George Saunders’s Lincoln in the Bardo, an extraordinary novel which takes place in the graveyard in Georgetown where Abraham Lincoln’s son was buried, what if we imagined listening to those buried in the Boca Raton cemetery and what they thought happened there—and of course also to those not buried there, but only visiting, or those excluded and commenting from outside, as Saunders does? How did they imagine religion and law to work? and community? What was their political theology before it was stamped out by the powers that be, political and academic? What if we listen to Nat Turner or Sethe—or the death penalty jury—each forced to imagine and live a new vernacular political theology of community on the violent terrain of American freedom?