Abortion Rights as Religious Freedom

Chapter 4: The Definition of "Religion"

CHAPTER 4 The Definition of "Religion" THE FIRST AMENDMENT BEGINS, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." We saw in the last chapter that the Court's understanding of these Religion Clauses has evolved considerably during the past one hundred years. But uncertainties attend the results of this evolution . The present chapter proposes and defends a unified, consistent, and satisfactory definition of "religion" that expresses the concept currently used by the Court. Some judges: and commentators deny the possibility of any unified and consistent definition. They maintain that "religion," though appearing only once in the First Amendment, has two different meanings, one for the Establishment Clause and another for the Free Exercise Clause. Another commentator notes that "the scope of religious pluralism in the United States . . . has resulted in such a multiplicity and diversity of ideas about what is a 'religion' or a 'religious belief' that no simple formula seems able to accommodate them all."l A third is more categorical: "No single characteristic should be regarded as essential to religiousness."2 The chief justice of the Supreme Court wrote: "Candor compels acknowledgement ... that we can only dimly perceive the lines of demarcation in lhis extraordinarily sensitive area of constitutionallaw."3 Yet the definition of religion remains important in many legal disputes , making the absence of a dear definition at least regrettable. As one appellate judge put it: Though litigation of the question whether a given group or set of beliefs is or is not reliigious is a delicate business, our legal system sometimes 111 112 Chapter 4 requires it so that secular enterprises may not unjustly enjoy the immunities granted the sacred. When tax exemptions are granted to churches, litigation concerning what is or is not a church will follow. When exemption from military service is granted to those who object on religious grounds, there is similar litigation: According to the same judge, however, the "doctrines and definitions ... the law has provided [are] unsatisfactory."5 The present chapter remedies this situation by providing a definition of religion that is clear, that expresses the concept employed by the Court, and that applies equally to both Religion Clauses. This chapter first argues that for constitutional purposes it is not the noun "religion" but the adjective "religious" that needs to be defined, and that all things religious can be defined in terms of religious belief. The next two sections explain the contrast between secular (nonreligious ) beliefs and religious beliefs as these are judicially understood in First Amendment contexts. Judicial decisions that classify texts, activities , doctrines, groups, and so forth as either religious or nonreligious are shown to reflect the proposed definition. Here is a preliminary account of that proposed definition. Religious beliefs are those that cannot be established by appeal merely to secular premises and methodologies. Secular premises and methodologies include what passes for common-sense knowledge in our society (e.g., fire burns people, punishment deters crime), the scientific beliefs that underlie our technology (e.g., electrons and bacteria exist), the methodology accepted in our society for the generation of scientific and technological knowledge (e.g., observation, microscopes, carbon dating, and mathematical calculations can be useful), and the values considered essential to society (e.g., peaceful coexistence among its members, limits on assault and murder) or essential to our type of society (e.g., individual liberty, private property, pluralism, and hard work). More generally, secular premises are drawn from secular beliefs. I term "secular beliefs" all those agreements of belief, thought, and practice that are the basis of the cooperation and mutual understanding needed among people to maintain and perpetuate our society. Religious beliefs are those that cannot be supported cogently with arguments or demonstrations whose premises include only secular beliefs . What is more, for First Amendment purposes, all religious matters are religious because of their relationship to religious beliefs. For example , "creation science" is religious because it results from an interpretation of the Bible. The Bible is a religious text because of its relationship to belief in the existence of God, whose actions in history it is supposed to record. Belief in the existence of God cannot be supported cogently Definition of "Religion" 113 by the use of common sense, science, technology, or accepted scientific methodologies" so it is a religious belief. I call this the epistemological definition of religion because religion is defined in terms of how we...