Accommodating “Religion”

by Aaron R. Petty

“[R]eligion is a highly complex concept.” It is both a member of the everyday English lexicon and a constitutional term of art. Recently, several commentators have suggested that “religion,” as the term is understood and applied by courts, primarily refers to beliefs or systems of beliefs. This conventional understanding privileges some religions at the expense of others. Specifically, the notion that religion is chiefly a matter of adherence to a set of propositions reflects a Christian and largely Protestant worldview; this understanding measures whether something is a religion or not by the extent to which it resembles Protestant Christianity. How should the law account for this imbalance, where the very constitutional foundation of religious liberty—the idea of religion itself—is not a level playing field? As Lori Beaman put it, “If the very notion of religion is imbued with a Christian definitional bias, how can law interpret religious claims outside that framework?”

The subject of how (or whether) “religion” ought to be defined for legal purposes, or even how it should be understood as a general matter, is well trodden. At this point, there is little to be gained by suggesting yet another definition or by proposing a novel comparative approach. Several commentators have convincingly argued that true religious freedom in the United States is “impossible,” that the religion clauses are hopelessly in tension with each other, that free exercise cannot be protected in the absence of cultural (and hence theological) understandings about religion, that legal pronouncements on religious freedom entail choosing between competing background assumptions about what religion is, and that definitions of religion inherently limit religious freedom by saying what is and what is not really religion.

For better or worse, the religion clauses are a part of American jurisprudential legacy. We must be able to address the religion clauses in some measure, if for no other reason than “[b]ecause the constitution says so.” To address the religion clauses, we must engage with the term “religion.” In this Article, I hope to illuminate some of the problems in defining religion for legal purposes by taking a step back and examining problems with definitions of religion in general. I aim to begin a discussion of how the word “religion” in the First Amendment is best understood, given the fact that “religion” is not a neutral category.

At the very least, a critical review of our constitutional terms of art seems overdue:

The anxious obsessiveness of scholars of religion over the appropriate referent of the word ‘religion’ can be of service to a group—American lawyers and judges—which has spent a lot of words on the subject but which, in general, has not had the inclination or training to analyze carefully the discourse about religion that they employ.

Drawing on definitions attempted in the field of religious studies and other disciplines, I ask whether religion should be defined for legal purposes. If so, how? And if not, what alternatives are available?

In Part I, I briefly review the concept of religion with particular reference to the common understanding of religion as belief. I note that using belief as a criterion for identifying religion has several shortcomings, both internally and externally. Part II discusses various types of definitions and evaluates their utility in defining religion. Part II.A covers “essentialist” definitions, including several prominent examples, while Part II.B introduces “multifactor” strategies including polythetic classification/numerical phenetics, family-resemblance theory, prototype theory, and other open-ended approaches. Part III turns to application of definitions of religion in legal contexts. Part III.A traces the development of the Supreme Court’s struggle with the definition of religion in modern cases. Part III.B addresses some of the leading academic thought on how to deal with the definitional quandary. In light of the many drawbacks and difficulties faced by all of the various approaches, Part IV suggests potential avenues for avoiding the issue, at least in part. Part IV.A discusses the largely abandoned theory of understanding “religion” differently in the Free Exercise Clause and the Establishment Clause. Part IV.B applies decisional sequencing to suggest that in Free Exercise cases, where the religious status of the claimant is in doubt, judges address whether the Free Speech Clause might resolve the issue without reaching the question of “religion.” Finally, the last section offers a brief conclusion.


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