restricted access Chapter 5: "Religion" in Court
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CHAPTER 5 ~~Religion~' in Court THE PRECEDING CHAPTER ATTRIBUTES to the Supreme Court a particular understanding of "religion" as it appears in the First Amendment. That understanding is summarized at the end of Chapter 4. Court opinions were used to illustrate several, but not all of the views there attributed to the Court. Other views can be attributed only indirectly. For example, in no opinion (that I am aware of) does the Court maintain explicitly that beliefs of fact and beliefs of value are epistemologically different, that secular beliefs are agreements needed for vital social cooperation, or that religious beliefs can be neither refuted nor confirmed on secular grounds (except for those that can be refuted on such grounds but are called religious because of their association with other beliefs that can be neither refuted nor confirmed). These views are attributed to the Court not because the Court states them, but primarily because attributing them to the Court helps make sense of what the Court has stated and decided, much as attributing gravitational attraction to physical mass helps make sense of lunar movements and tidal changes. The present chapter supports the analysis given in Chapter 4. First, it provides additional examples of Court decisions and statements that are explained well by attributing to the Court use of the epistemological standard for distinguishing religious from secular belief. The next two sections defend the epistemological understanding of religion against objections. They show that this understanding does not blur unacceptably the distinction we need to make between fanatics and the mentally ill, on the one hand, and religious believers, on the other. Then, an apparent conflict is resolved between the epistemological understanding 141 142 Chapter 5 of religion and judicial recognition of secular religions. The next section shows that the analysis of "religion" provided in Chapter 4 relieves whatever tension exists between the two Religion Clauses (see Chapter 3), so dual definitions are unnecessary. The chapter concludes by reiterating a unitary definition that makes sense of every interpretation of the Religion Clauses rendered by the Court during the past fifty years. The Epistemological Standard Applied As we saw in the preceding chapter, the analysis given here conforms to the Supreme Court's contrasting treatment of creation science as religious and the theory of evolution as secular. The same contrast between the religious and the secular can be seen in other areas of judicial concern . The present section shows, through examples, that what I call the extended epistemological standard is used by the Court in First Amendment contexts. Consider again, for example, programs of inoculation. The value judgment that physical health is generally good is a basic value premise or postulate in our society. From this and associated basic postulates one can legitimately derive the desirability of reducing the incidence of such diseases as polio and smallpox. Socially accepted methods of gaining knowledge about medicine and disease support the belief that inoculation programs are reasonable means of reducing the incidence of these diseases. So such inoculation programs are secular. They can be supported by public funds and can be conducted in public schools without compromising the constitutional prohibition regarding the establishment of religion. Scientology, too, claims to promote the secular goal of human health. In the words of Circuit Judge J. Skelly Wright: "Though auditing is represented primarily as a method of improving the spiritual condition of man, rather explicit benefits to bodily health are promised as well. Hubbard has asserted that arthritis, dermatitis, asthma, . . . eye trouble ... and sinusitis are psychosomatic and can be cured, and further that tuberculosis is 'perpetuated by engrams.'''l Nevertheless, the scientological theory that connects "auditing" and the reduction of "engrams " to these health benefits does not accord with canons of evidence commonly used in medical sciences. Because scientologists cannot show that their knowledge is based on publicly accepted standards of knowledge acquisition, their belief in the health benefits of auditing is religious , not secular. "Religion" in Court 143 Transcenden1tal Meditation is similar. It promises improvements in mental health that accord with our society's fundamental value premises . But its account of how those results are achieved involves, according to the appellate court, belief in transcendental entities and a transcendental reality. By definition, transcendental reality is beyond mundane reality. Normal canons of knowledge acquisition apply only to mundane reality. So knowledge about transcendental matters is religious , not secular, and cannot be taught in the public schools. As Justice Frankfurter wrote years earlier in a different case: "The Establishment Clause...


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