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DEFINING RELIGION UNDER THE
FIRST AMENDMENT:
AN ARGUMENT FOR ANCHORING A
DEFINITION IN INJURY
SARAH LUBIN*
TABLE OF CONTENTS
I. THE RELATIONSHIP OF THE ESTABLISHMENT AND FREE
EXERCISE CLAUSES TO A DEFINITION OF RELIGION .... 112
II. PRIOR CASE LAW: THE SUPREME COURT’S ATTEMPTS
AT DEFINING RELIGION ......................................................... 116
III. ATTEMPTS TO DEFINE RELIGION BROADLY ........................ 126
A. SINCERITY OF BELIEF .............................................................. 127
B. RATIONALITY OF BELIEF ......................................................... 129
IV. DEFINING BELIEFS THROUGH INJURY ................................... 130
V. CONCLUSION .................................................................................. 135
The founding fathers left the United States with a clear map to guide almost every aspect of government: the United States Constitution. This map includes detailed explanations of how and for what purpose many of the institutions that are essential to American life should be organized and defined. Yet one of the most fundamental aspects of American life— religious belief and practice—while protected by the First Amendment, was left without a definition of religion to guide the amendment’s
- (^) J.D. Candidate, University of Southern California, Gould School of Law, 2019; B.A., New York University, 2016. I would like to thank Professor Stolzenberg for her guidance and advice during the writing of this note. I would also like to thank my family and friends for their support throughout the Note writing process.
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application. Some believe no definition of religion was provided because the Founders believed a strictly theistic definition was the obvious choice, while others think that perhaps the Founders were being purposefully vague.^1 Whatever the Founders’ reasoning may have been, the limited language of the Religion Clauses provides little guidance regarding what constitutes a religion deserving of protection, which has caused this area of constitutional discourse to become “a conceptual disaster area.”^2 This has left some of the most important questions about religion’s place in American life to the courts, forcing judges to pick up where the Constitution leaves off and do the work of unraveling religion’s legal position in the United States by trying to define what the intent of the Founders was when they drafted the Religion Clauses.^3 This task has proven particularly difficult given the inherently enigmatic nature of religion. There are a number of difficulties that make any attempt at defining religion fraught with uncertainty and complications. The most notable of these concern whether sincerity of belief should be a part of defining religion for purposes of exemption from a law of general applicability; how a court could go about assessing sincerity; whether a belief which the holder acknowledges is irreligious can qualify for religious protections; what criteria distinguish religion from sincerely held secular beliefs (if this distinction is even necessary); and whether a static definition of religion is possible at all. Many may wonder why a definition of religion would be required. Some scholars see a definition as a necessary “screening mechanism,”^4 while others feel that religion transcends any attempt at being defined.^5 A definition, or at least some way of sorting which beliefs are entitled to the protections of the Religion Clauses, is necessary precisely because of the existence of the Religion Clauses. If those clauses are properly interpreted as granting special protections for people with beliefs that are considered (^1) Jeffrey L. Oldham, Note, Constitutional “Religion”: A Survey of First Amendment Definitions of Religion, 6 TEX. F. ON C.L. & C.R. 117, 121 (2001) (citing Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools—An Update, 75 CALIF. L. REV. 5, 6 (1987)). (^2) Steven G. Gey, Why is Religion Special? Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment, 52 U. PITT. L. REV. 75, 75 (1990). (^3) Id. at 120. (^4) Jesse H. Choper, Defining Religion in the First Amendment, 1982 U. ILL. L. REV. 579, 591 (1982) (“In effect, the [legal definition of religion] acts as a screening mechanism that determines what claims will be subjected to the substantive "balancing test" that the Court has developed for judging whether an exemption for religion must be granted. Thus, the more inclusive the legal definition of religion, the greater the number and diversity of claims under the free exercise clause that must be considered on the merits.”). (^5) James M. Donovan, God is as God Does: Law, Anthropology, and the Definition of “Religion”, 6 SETON HALL CONST. L.J. 25, 27 (1995).
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religious even be maintained? These questions only lead to more difficult questions. If the distinction between religious and secular is maintained, should religious exemption require a person to believe in a certain doctrine? Should it require belief in a “god”? Need the belief be irrational? Can the beliefs that are protected be moralistic and ethical rather than inherently religious, whatever that means? These are complicated questions that many would argue a court is not equipped to ask or answer, as many of these questions require intrusive inquiries into the private practices of individuals and which could never be answered with any certainty, as many aspects of religion are premised on experiences that cannot be proven or even explained through words.^12 In this way, questions of religion have proven to be some of the most slippery and elusive the Court has faced and have at times proven incompatible with a legal system premised on taking as true only that which can be proven in a courtroom. Because these questions are so difficult, there has been a remarkable amount of turnover in the Supreme Court’s jurisprudence on this subject, as different members of the Court have had different opinions of the position and nature of religion in the law and, by extension, American life. This Note will begin by examining the history of the Supreme Court’s attempts to assign a definition to religion. Reviewing the Court’s earlier definitions shows progression from a narrow view of religion that is centered on orthodox Christian values towards a more inclusive definition capable of encompassing moralistic and unorthodox concepts of religion.^13 Many of these unorthodox religious ideas do not evoke the existence of a god or higher power at all. This expansion was followed by a backtracking towards a definition that does require that a specific belief at least be religious. The Note will then evaluate some of the most prominent questions the Court has applied when attempting to define religion and describe the extent to which these questions have been successful in guiding the Court. This will include considering whether these questions are appropriate for the Court to apply at all, keeping in mind that religion is a personal practice which many would argue only the individual adherent is equipped to assess the sincerity and nature of. (^12) United States v. Ballard, 322 U.S. 78, 86 (1944). (^13) When discussing “moralistic” concepts of religion, I am referencing views of religion that are centered around a code of conduct but do not necessarily incorporate belief in a higher power. When discussing “unorthodox” concepts of religion, I am referencing ideas of religion outside the most popularly practiced religions in the United States. See Reid Wilson, The Second Largest Religions in Each State, WASH. POST (Jun. 4, 2014), https://www.washingtonpost.com/blogs/govbeat/wp/2014/06/04/the-second-largest-religion-in- each-state/.
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Deciding the appropriateness of these questions requires balancing the interest of the Court in providing appropriate Free Exercise exemptions against the interest of individuals in not being required to define and defend their religious beliefs in a courtroom setting.^14 The Note will close by questioning whether a single definition of religion is possible, or even necessary. In the end, I argue that perhaps the best definition of religion is based on the injury caused to an adherent if their beliefs are not protected. In this way, I will argue for a definition that avoids defining specific practices or characteristics of a religion itself, but instead will look at the role of the practice in the adherent’s life and how denying protection of specifically religious beliefs will harm the adherent. In applying this definition, the Court would look to a combination of what the Religion Clauses were designed to protect and whether denial of an exemption would lead to a cognizable injury. This functionalist approach looks at the position of the religious belief in the life of the adherent and whether the consequences of forcing an adherent to break with those beliefs would cause a cognizable psychological injury. This approach avoids assessing the quality or nature of beliefs themselves, but instead looks to the injury to an adherent that would come from denying the free exercise of those beliefs and whether that injury is the product of a specifically religious belief. This Note will not attempt the grand undertaking of defining what religion is in theological terms but will aim only to delineate which legal approaches to defining religion have been more and less successful, ultimately suggesting that perhaps it is most appropriate to develop a standard that avoids defining religion in terms of its theological characteristics. This approach is important because it provides the most room for protection of minority and unorthodox beliefs. Defining religion is an almost impossibly complex undertaking, and courts should therefore stick to a functionalist approach which focuses only on getting the proper legal outcome when facing the determination of whether a claim for an exemption to a law should be allowed under the Religion Clauses. Additionally, this inquiry is limited to cases decided by the United States Supreme Court, in part because to frame this inquiry more broadly creates more complication than can be addressed in the present Note, and because the decisions of the United States Supreme Court have the most direct practical implications on claimants due to their binding effect on lower courts. (^14) See Dmitry N. Feofanov, Defining Religion: An Immodest Proposal, HOFSTRA L. REV. 309, 335–36 (1994) (discussing Ballard, in which the Court held that its inquiry into a claimant’s religion may focus on the sincerity of the religious belief, but not the content of the religious belief).
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deserving of Free Exercise protection—and to what extent—has forced the Court to decide what constitutes an impermissible prohibition on religious practice, as well as what beliefs even qualify as a religion deserving of Free Exercise protection.^20 While religious speech and thought can also be protected through the First Amendment’s freedom of speech and assembly provisions, religious practice and observance requires protection by the Free Exercise Clause.^21 The Free Exercise Clause has been invoked both when the government compels conduct that is prohibited by one’s religious beliefs (e.g., working on the Sabbath, military service)^22 and when religious behaviors have been barred by government interference.^23 It is not beliefs that are barred by these laws, but behaviors motivated by religious beliefs (e.g., polygamy, animal sacrifice, use of narcotics in ritual practice).^24 Many would argue that a definition of religion for constitutional purposes is required so that a distinction can be made between Free Exercise claims that are based on personal preferences (whether those preferences be moral, political, philosophical, or otherwise) that the Founders may not have intended to protect, and Free Exercise claims that are based on sincerely-held beliefs that rise to the level of religious, either explicitly by name or by their place in the consciousness of the belief-holder.^25 Being able to make this distinction, based on the intent of the Founders, is why it is important to have a definition, or at least functionalist criteria, for determining which beliefs are protected and which are not. In addition, there has been little clarity regarding what actually (^20) Choper, supra note 4, at 581. (^21) Id. at 583. (^22) See Sherbert v. Verner, 374 U.S. 398, 410 (1963) (holding that a state’s denial of employment benefits to an applicant who would not accept employment that required her to work on the Sabbath violated the Free Exercise Clause); see also Gillette v. United States, 401 U.S. 437, 441–48 (1971) (analyzing the relationship between conscientious objection to compelled military service and the Free Exercise Clause). (^23) See BERG ET AL., supra note 10 at 61 (discussing the significance of the term “prohibiting” in the Free Exercise Clause). (^24) See Reynolds v. United States, 98 U.S. 145, 166 (1878) (holding that it was constitutional for a state government to prohibit polygamy without exempting from the prohibition those who wish to have multiple spouses as part of their religious exercise); see also Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 542–46 (discussing a city ordinance’s lack of neutrality towards religion in prohibiting animal sacrifice); see also Emp’t Div. v. Smith, 494 U.S. 872, 890 (1990) (holding that a prohibition of a drug was a law of general applicability and thus did not violate the Free Exercise Clause as applied to those who ingested the drug as part of a religious ceremony). (^25) BERG ET AL., supra note 10, at 59.
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constitutes a burden on the free exercise of religion.^26 The Court has held that the Free Exercise Clause protects an individual against “governmental compulsion” but does not allow an individual “[the] right to dictate the conduct of the Government’s internal procedures.”^27 Indeed, even “indirect coercion or penalties” against an individual based on the practice of their religious beliefs triggers the protections of the Free Exercise Clause and “are subject to scrutiny under the First Amendment.”^28 Yet an individual is not protected from all government coercion burdening their religious practice. The Court has found that “incidental effects of governmental programs... which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs” do not constitute a burden for the purpose of supporting a Free Exercise claim.^29 In this way, what constitutes a burden has remained a moving target with no clear definition, creating great confusion regarding what claims meet the threshold requirements of asserting a Free Exercise claim.^30 In attempting to understand the application of the Religion Clauses, it is helpful to look at the Framer’s intent in writing them, as well as the predominant religious currents that were present in the colonies and original thirteen states around the time of the drafting of the Bill of Rights. At the time of the drafting of the Religion Clauses, James Madison urged that the meaning behind the Bill of Rights be imputed from the “sense attached to it by the people in their respective State Conventions.”^31 This implies that the meaning behind the amendments should be gleaned from the state constitutions of convention delegates and the religious views that informed the drafting of those constitutions.^32 It is generally accepted that the Founders believed that the treatment of religion should remain the prerogative of the states.^33 The views of New England Puritans, the Evangelical tradition, Enlightenment thinkers, and civic republicans are believed to have made up the major religious influences that would have informed the thinking of state governments and the drafters of the Bill of (^26) See generally Lupu, supra note 6, at 933 (“One question upon which little attention has been focused, however, is the character of government activity necessary to constitute a ‘burden.’”). (^27) Bowen v. Roy, 476 U.S. 693, 700 (1986). (^28) Lyng v. Northwest Indian Cemetery Protective Ass’n., 485 U.S. 439, 450 (1988). (^29) Id. (^30) Lupu, supra note 6, at 935–37. (^31) John Witte, Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 NOTRE DAME L. REV. 372, 377 (1996). (^32) Id. (^33) Stuart D. Poppel, Federalism, Fundamental Fairness, and The Religion Clauses, 25 CUMB. L. REV. 247, 251 (1995).
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right to freely exercise a moral or political belief. It can be argued that the tension between beliefs that should be deemed religious and beliefs that should not, as well as the need for a means of delineating the two, can be found in the Court’s Free Exercise jurisprudence, which has provided those with religious beliefs accommodations and “consideration not afforded to the nonreligious.”^41 If the court is to require accommodation of religiously motivated conduct, but fails to extend accommodation to “nonreligious practices that are closely connected to the exercise of first amendment rights such as free speech,”^42 the Court has a responsibility to justify which beliefs qualify for accommodation and which do not. I propose that the court look to the injury caused by denying accommodation of specifically religious beliefs (as opposed to moral, ethical, political, philosophical, etc.) in determining which beliefs be given the protections of the Religion Clauses. II. PRIOR CASE LAW: THE SUPREME COURT’S ATTEMPTS AT DEFINING RELIGION The Supreme Court’s complicated attempts at defining religion date back to over one hundred years ago.^43 Initially, unraveling the intent and meaning behind the Religion Clauses was left to state legislatures and courts, but during the 20th century, this burden became predominately that of the United States Supreme Court and the lower federal courts.^44 The first case in which the Court attempted to define religion was Davis v. Beason in 1890, in which a Mormon man was not allowed to vote because of laws prohibiting those who practiced polygamy from registering to vote.^45 The Court held that religious practice and religious belief are two separate entities, and that while the law may not interfere with someone’s religious belief, it may interfere with an individual’s religious practice if that practice is contrary to the laws of the United States.^46 The Court found that to hold otherwise would be “in effect to permit every citizen to become a law unto himself.”^47 The Court gave a brief definition of religion in its opinion, stating “[t]he term ‘religion’ has reference to one's views of his relations to his Creator, and to the (^41) Gey, supra note 2, at 80. (^42) Id. at 86. (^43) See, e.g., Davis v. Beason, 133 U.S. 333 (1890), abrogated by Romer v. Evans, 517 U.S. 620 (1996) (upholding a law preventing a Mormon polygamist from registering to vote). (^44) Witte, supra note 30, at 373. (^45) Davis, 133 U.S. at 341, 346–47. (^46) Id. at 344. (^47) Id.
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obligations they impose of reverence for his being and character, and of obedience to his will.”^48 This definition takes a narrow view of religion that implies adherence to a recognizable god and orthodox ideas of religious practice, without any thought of purely moralistic or purely ethical considerations that a person might treat as the highest concern and, by extension, as religion. The Davis Court explained that the Religion Clauses were “intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience.”^49 While this statement does affirm the Court’s commitment to religious freedom, it makes no mention or attempt at considering less orthodox or non-Western ideas of religion, only seeming to allow for religious ideas centered around a person’s “Maker” or “Creator.” By continuing to define religion in relation to a person’s relationship with a “Maker” or “Creator,” the Court leaves no room for treating as religious ideas that are only moralistic or ethical, nor those which do not prescribe their meaning from a relationship to a higher power. While this definition is a far cry from the far more elastic definitions put forth by the Court in later cases, it serves as a helpful point of reference by demonstrating where the Court started out in its analysis of the meaning of religion, and it attempts to provide definitional guidance regarding the beliefs that should be protected by the Free Exercise Clause. These early attempts at protecting Free Exercise looked to the religious nature of a practice rather than the outcome or injury that might be incurred if an observer was forced to break with religious practice. The Supreme Court maintained a notion of religion premised on a relationship with a Christian God through the 1930s, as evidenced by the Court’s holding in United States v. Macintosh in 1931.^50 In this case, an applicant for U.S. citizenship made claims of conscientious exemption from war, stating he would “not promise in advance to bear arms in defense of the United States unless he believed the war to be morally justified.”^51 The Court held that having a guiding moral or ethical belief did not qualify Mr. Macintosh for an exemption from the requirements of U.S. citizenship, and that he therefore should be excluded from U.S. citizenship because of his unwillingness to defend the Constitution.^52 In its (^48) Id. at 342. (^49) Id. (^50) See United States v. Macintosh, 283 U.S. 605, 625 (1931) (“We are a Christian people, according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God.”) (internal citation omitted). (^51) Id. at 613. (^52) Id. at 626.
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by the Supreme Court’s opinion in United States v. Ballard.^60 Guy Ballard was tried for mail fraud after soliciting monetary contributions through the mail in exchange for promises that he would communicate with God on behalf of others; he claimed to have special status as an “ascertained master” with the capability of receiving and sending “divine messages.”^61 The trial court instructed the jury to premise its verdict on whether Mr. Ballard sincerely held a good faith belief in the ideas that he professed.^62 The Court departed from its earlier ideas of religion, centered around the orthodox belief in a Christian God, and instead held that the First Amendment: embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law.^63 In effect, the Court conceded that a person can hold a sincere religious belief, deserving of the protections of the Religion Clauses, even if that belief is outside generally accepted orthodox ideas of religion. The Court formally abandoned its earlier explanations of religion which centered on Christian ideas of a “Maker” or “Creator,” and instead showed a new openness to religious ideas which seemed “incomprehensible” or outside the generally accepted norm. In addition, the Court recognized in its opinion that a person cannot be forced to prove their beliefs in a court because what may be unquestionably real to one person may be “incomprehensible” to another.^64 In other words, the Court accepted that a person may hold valid religious ideas even without a basis other than personal conviction. Some see this decision by the Supreme Court as building on the Second Circuit’s decision the previous year in United States v. Kauten,^65 in which the Court of Appeals stated that moral belief (^60) United States v. Ballard, 322 U.S. 78 (1944). (^61) Id. at 79. (^62) Id. at 83. (^63) Id. at 86–87. (^64) Id. at 86. (^65) John Sexton, Towards a Constitutional Definition of Religion, 91 HARV. L. REV. 1056, 1062 (1978).
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and conscientious objection could be “the equivalent of what has always been thought [of as] religious impulse.”^66 The Kauten court recognized that religion “accepts the aid of logic but refuses to be limited by it” and that a person’s response to an “inward mentor, call it conscience or God” was deserving of being categorized as religious.^67 While the Kauten court examined the issue of whether moral beliefs such as issues of the conscience are religious, rather than the issue of unorthodox or unproven beliefs as the Supreme Court did in Ballard, both decisions demonstrate the trend toward growing willingness by the courts to treat as religious those beliefs which fall outside of generally accepted normative ideas of religion. The Kauten decision further recognized that some things may be “a compelling voice of conscience, which [the court] should regard as a religious impulse.”^68 By using the word “impulse,” the court implied something reflexive or involuntary about religion, as though the observant may not have complete control over their belief in a particular faith or set of ideas. Ballard and Kauten signify a broadening of judicial understanding of religion, to apply not only to man’s relationship to God but also to “the relationship of man to the broad universe and to other men.”^69 The Ballard Court accepted that beliefs that cannot be explained or understood by non- believers are still worthy of the protection of the Religion Clauses, effectively recognizing that religious beliefs that may seem unusual or unorthodox and cannot be readily explained are still deserving of protection. This idea is an outgrowth of Kauten in that Kauten recognizes that an individual’s beliefs that may be unique to them and motivated by their conscience are deserving of protection. These explanations of religion represent a significant recalibration of the Court’s jurisprudence about religion, expanding religious exemption to beliefs far beyond orthodox religious ideas and to beliefs that focus on an individual’s moral relationship to the world, even when it may be unknown by those who are not the practitioner. The Court’s choice of language when describing these beliefs implies that the Court is willing to accept unorthodox ideas as occupying the place of religion in the lives of observants because there is something about holding these beliefs which is outside the control of the observant (i.e., the beliefs are an “impulse”). While both these opinions still look to religiousness as the foundation and the point of comparison for their inquiries, they also act as an intermediary between early cases— (^66) United States v. Kauten, 133 F.2d 703, 708 (1943). (^67) Id. (^68) Id. (^69) Sexton, supra note 65, at 1061.
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While Seeger’s definition of religion might solve issues related to protecting minority religions, it does nothing to delineate religion from secular belief, instead treating the two as the same thing for purposes of constitutional and statutory analysis.^76 In addition, this test is unworkable because in many cases it would be impossible to determine an individual’s ultimate concern without inquiries into that individual’s private thoughts and beliefs, which would be unfeasible to prove in a court room.^77 Many religious adherents, particularly those who are not as fervent in their adherence to religious belief, might have ultimate concerns outside of religion that they profess a strong adherence to, thereby muddling the test further.^78 The test in Seeger implies that in theory, if a person is a Christian and attends church regularly, but perhaps also has very strong ideas about politics, the political beliefs could be that person’s highest concern, implying that the Christian religious beliefs should receive no protection. Therefore, while Seeger did much to loosen the Court’s strict requirements of formal religious practice for the purposes of legal protection, it did not significantly clarify the Court’s definition of religion. Yet, it is possible that the lack of clarity in Seeger is a strength. By focusing on the place a belief holds in the life of an observant, rather than the nature or quality of that belief, the test provides the flexibility necessary to ensure that unconventional religious beliefs are not unfairly prejudiced just by virtue of their unfamiliarity to the Court. The Court showed its willingness to stretch Seeger’s reasoning in Welsh v. United States, decided just two years after Seeger.^79 While Seeger had been willing to acknowledge some concept of a god and the possibility of a higher power, Elliott Welsh was explicitly an “outright atheist.”^80 He refused military service for purely ethical and moral reasons but disavowed any religious belief.^81 The government attempted to distinguish his claim for exemption from Seeger based on his explicit denial of a belief in God, stating that his beliefs were only “religious in the ethical sense of the word,” and by categorizing them as “essentially political, sociological, or philosophical views or a merely personal moral code.”^82 The Court held that these facts were not grounds for a distinction, and that the logic of Seeger applied to Welsh’s claimed grounds for (^76) Id. (^77) Lupu, supra note 6, at 954. (^78) Id. (^79) Welsh v. United States, 398 U.S. 333 (1970). (^80) Lupu, supra note 6, at 954. (^81) Welsh, 398 U.S. at 341. (^82) Id. at 341–42.
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exemption.^83 In doing so, the Court found that someone with no discernable religious beliefs—someone who even openly acknowledged being an atheist—was entitled to the same Free Exercise exemption as those with sincerely-held religious beliefs, thereby giving the irreligious the same status as the religious for the purpose of the First Amendment.^84 The only discernable limit the Court placed on religious protection in Welsh was on beliefs that “[rest] solely upon considerations of policy, pragmatism, or expediency.”^85 In making this distinction, the Court seems to hold that the line between religious and irreligious is found where a belief changes from being a personal moral or ethical conviction or faith in a higher power, to becoming a purely practical consideration. Therefore, the Court’s holding in Welsh seems to go a step further than Seeger by characterizing beliefs that are explicitly devoid of a god or theological basis as being actually religious, rather than just finding that they can serve as the functional equivalent for statutory and constitutional purposes. It may be possible to view the opinions in Seeger and Welsh as the extremes of the Court’s willingness to engage an expansive definition of religion.^86 In the years following these opinions there was a sort of backpedaling by the Court, as it reigned in the definition of religion that it applied for purposes of First Amendment protection and attempted to delineate religion from irreligion on more narrow grounds. In Wisconsin v. Yoder, decided in 1972, the Court held that it was appropriate to exempt Amish children from a Wisconsin statute that required children to receive formal schooling through the age of sixteen; it based its holding on the distinctive religious and community norms of the Amish.^87 The Court, in part, premised its ruling on the fact that formal schooling would serve no useful purpose given the Amish way of life, and that formal schooling would in fact “imbue Amish children with values which [are] radically at variance with those of their community.”^88 The opinion found that the Amish way of life and religious beliefs are “inseparable and interdependent” and that the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important (^83) Id. (^84) L. Scott Smith, Constitutional Meanings of “Religion” Past and Present: Exploring in Definition and Theory, 14 TEMP. POL. & C.R. L. REV. 89, 96 (2004). (^85) Welsh, 398 U.S. at 342–43 (1970). (^86) Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233, 234 (1989). (^87) Wisconsin v. Yoder, 406 U.S. 205, 224–25 (1972). (^88) Smith, supra note 84, at 97.
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Seeger’s beliefs were not based on his belief in any defined religion (the claimant declined to answer “yes” or “no” when asked if he believed in God), but instead were based on his own personal “ethical creed” and “devotion to goodness and virtue for their own sakes” and the teachings of philosophers, namely Aristotle, Pluto, and Spinoza.^94 In Welsh, the claimant went so far as to proclaim himself an atheist. Both claimants did not identify as adherents to any defined god or sect of religious or philosophical belief, but instead premised their exemption claims on their own personal systems of beliefs. Claims for exemption like Welsh’s and Seeger’s—premised entirely on personal beliefs—seem to be the sort the Court explicitly rejects as qualifying for exemption in Yoder. Additionally, they are patently inconsistent with the intent of the Framers when providing special protections for those with religious beliefs when drafting the Bill of Rights.^95 The third way in which Yoder departs from the reasoning of Seeger and Welsh is that Yoder emphasizes specific elements of Amish religious practice, qualifying Amish beliefs as religious for purposes of exemption. The Court declared both the organized community aspect of Amish life and the way in which Amish religious practices permeate all aspects of everyday existence in the Amish community as indicative of religion.^96 The Court also pointed to the continuity of the Amish’s beliefs as a basis for their qualifying for religious exemption.^97 On this basis, the Court appears to be moving towards a “content-based definition” of religion, based on the qualities that define a belief rather than the priority or sincerity of a belief that defines its purpose in the life of an adherent.^98 While this content-based definition may be desirable for its ease of application, looking to specific qualities or characteristics of a belief as dictated by the Court would seem to create an unjustifiably significant danger that judges will project their own constructs onto religion.^99 A definition of religion that looks not to the specific characteristics or content of a belief, but instead the nature of the injury sustained if an individual is forced to engage in conduct that is contrary to their beliefs, is more appropriate; one that recognizes that such an injury is specific to religious beliefs because it is an outgrowth of the special rights and privileges religious beliefs are afforded. (^94) United States v. Seeger, 380 U.S. 163, 166 (1965). (^95) BERG ET AL., supra note 10, at 59–60. (^96) Yoder, 406 U.S. at 216–218. (^97) Id. (^98) Id. (^99) Lupu, supra note 6, at 958.
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Since Yoder, the Supreme Court has not made any significant additional attempts to define religion. Instead, it often crafts answers to constitutional questions in ways to avoid the definitional issues of religions entirely. The Court’s past decisions are therefore all that is available to guide an understanding of what constitutes a belief worthy of religious protection under the First Amendment. These past decisions indicate a certain discomfort by the Court at each end of the definitional spectrum. By deciding Welsh and Seeger so that almost any sincerely held belief could be constitutionally protected as religious, regardless of its facially religious or irreligious nature, the Court indicated discomfort with too narrow a definition. But after Yoder, the Court also appears uncomfortable with a definition that is too broad, specifically rejecting personal philosophical beliefs as a basis for First Amendment Free Exercise exemption and indicating that there is an outer limit to the beliefs the Court finds deserving of protection. The Court’s decisions indicate that some definition in the middle is most appropriate; however, the Court fails to provide any guidance as to what that definition might be or how one would go about making the fine distinction between an unconventional theistic belief and a belief that is simply a personal philosophical or moral conviction. The fact that the Court has not arrived at any workable or stable definition of religion for purposes of applying the Free Exercise Clause reflects that the Court focuses too much on the content of religious beliefs instead of the effect of those beliefs on the life of the observant and the harm that comes from forcing an observant to break with their religious beliefs. III. ATTEMPTS TO DEFINE RELIGION BROADLY To recognize why it might be best to abandon the idea of defining religion by its ideological or practical characteristics, it is helpful to look at the strengths and pitfalls of some definitions that have been proposed by scholars. By examining two of the most expansive criteria for defining religion and understanding why these standards are still under inclusive, it becomes easier to see why a definition of religion centered around the justification for religion’s special treatment and injury to the observant is a better option. Thus, a new standard for determining who is entitled to exemptions, premised on criteria wholly separate from traits of religiosity, is the most workable solution.^100 (^100) I have chosen to discuss these two means of defining religion (sincerity of belief and irrationality of belief) because I feel they were the most expansive definitions that I encountered during my research that still provided enough guidance to be considered definitional in nature. Because of their expansive nature, I determined that they would provide the best means of
