Religion in the National Agenda: What We Mean by Religious, Spiritual, Secular

4-Religion and the Law

83 Religion and the Law ChAPTeR FoUR Since laws take the form of words, confusion over the meaning of “religious” or “religion” can cause not only individual unhappiness but social discontent as well. Secular states have succeeded churches in deciding the acceptable forms of religion and what religious activities are permitted to us, in their efforts to keep the peace. on the other hand, religion has always seemed a major rival to the authority of the state. Given the state’s ever expanding powers, this calls for special clarity. In trying to relate our english term “religion” to specific examples of our jurisprudence, I aim to be true to our common sense of the term rather than to personal preferences in this area. Take the following examples of recent uncertainties: some legal scholars think that if judges must define religion in rendering a decision they risk “establishing” a particular understanding of religion, contrary to our First Amendment prohibition.1 others assume that a secular conscience should share the constitutional protections that religious consciences have been granted, so that our laws do not privilege religion.2 There has been puzzlement over whether the “secular humanism” that Justice hugo Black introduced into legal terminology has become America’s established religion.3 And some have wondered whether choosing an abortion may qualify as an 84 || religion in the national agenda exercise of religious freedom.4 There is also the issue of whether one can claim anything whatever to be one’s religion, in hopes of being granted First Amendment exemption from certain laws. These are a few of the confusions that a nominal definition of religion may resolve. Definition is not an arbitrary matter. Languages are social, not individual, and we are only understood by observing common usage. A judge who tried to legislate a new definition would indeed be guilty of establishing his views. And while we are free to believe what we like, whether our beliefs are “religious” is for our culture to decide. We must play by the rules of the language we speak, which is why we cannot declare that our beliefs are purple. The common complaint that our courts need help in dealing with religious questions points to the notorious difficulty of defining the term. “There is no accepted definition of ‘religion’ for constitutional purposes, and no satisfactory definition is likely to be conceived,” declares Phillip e. Johnson.5 Kent Greenawalt thinks that no definition “will capture all and only the beliefs, practices, and organizations that are regarded as religious in modern culture.” he and others think that Wittgenstein’s notion of “family resemblances” offers the safest approach, following by analogy with indisputable examples.6 Winnifred Fallers Sullivan advises courts to seek the help of scholars in religious studies to help in this matter, but this is advice that we have seen reason to question.7 We have taken the position that nominal definitions avoid the charge of proceeding by fiat. If it were really true that we could not agree on a definition, then a court would have to prescribe one by an exercise of power. But since we have defined the term without regard to its legal implications, courts can feel justified in using that definition when deciding cases. Watching the legal mind grapple with distinctions will begin to show us the merits of our definition. In this chapter there will be more pointed criticisms of some vagaries in definition. We are dealing here with particular actions and not with larger social trends. I do not intend to advocate a particular religious viewpoint, but greater consistency in following our common language. religion and the law || 85 An Example of Confusion We may start with a notable case in which the U.S. Supreme Court tried to address this issue. In 1965 when the Court was deciding U.S. v. Seeger, a case of conscientious objection to military service, it felt that certain statutory definitions of religion were problematical . (Religious objection was the only statutorily recognized justification for avoiding combat service.) So the Court looked for help from outside, and quoted “eminent theologians” of that day: erstwhile Lutheran Paul Tillich, controversial Anglican bishop John A. T. Robinson, and Dr. David Saville Muzzey of the ethical Culture Movement, as well as a draft report from the Vatican II ecumenical council.8 This did verge on “establishing” those theologians’ views of religion as the law of the...