The First Amendment prohibits laws ‘‘respecting an establishment of religion’’ or ‘‘prohibiting the free exercise thereof.’’ Three terms are crucial to determining the meaning of the religion clauses of the First Amendment: ‘‘establishment of religion,’’ ‘‘free exercise,’’ and ‘‘religion.’’ Much of the debate over the meaning of the religion clauses concerns the first two terms, but the meaning of the third term is equally important and in many respects even more difficult to resolve. Defining Religion is crucial because the First Amendment prohibits the government from ‘‘establishing’’ a set of beliefs and practices only if those beliefs and practices fall within the category of ‘‘religion.’’ Likewise, the government’s general authority to regulate behavior is much more constrained if that behavior can be characterized as ‘‘religious.’’
The task of defining ‘‘religion’’ as that term is used in the First Amendment religion clauses is complicated by the fact that the courts often seem to apply one definition of religion to problems arising under the Establishment Clause and a different definition to problems arising under the Free Exercise Clause. This task will become more difficult as the country becomes religiously more diverse. An increasing number of citizens belong to nontraditional faiths, and their beliefs will not always fit easily within the framework of Western religion with which the courts are most familiar.
Traditional Definitions of Religion
Until the middle of the twentieth century, the task of defining constitutionally protected religion was viewed by the Supreme Court as a relatively simple one. During the nineteenth century the constitutional significance of religion was often viewed as coextensive with the dominance of the Christian faith. In Justice Joseph Story’s 1851 Commentaries on the Constitution, for example, he wrote that the ‘‘real object of the [First Amendment] was, not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment.’’ Although the Supreme Court never took quite such a narrowly focused view of the subject, until well into the twentieth century the Court continued to define religion in a way that coincided with Christianity and other Western religions. In United States v. Mcintosh, 283 U.S. 605 (1931), Chief Justice Charles Evans Hughes described religion in the most traditional manner possible: ‘‘The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.’’
Broadening the Definition of Religion: The Conscientious Objector Cases
A series of cases involving conscientious objectors to the draft during the Vietnam War caused the Court to move beyond the traditional definition of religion in First Amendment cases. These cases involved a provision of the military conscription laws that exempted from military service individuals who were conscientiously opposed to participation in war in any form because of their ‘‘religious training and belief.’’ The statute defined ‘‘religious training and belief ’’ in the traditional way as ‘‘an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.’’ If the Court had adhered to the literal meaning of this provision, it would have been faced with a statute that would deny conscientious objector status to many different groups of believers, agnostics, and atheists whose views on religion did not fit the traditional model.
In contrast to the narrow precision of its previous opinions on the subject, the Court took a more ecumenical and open-ended approach to the definition of religion in its conscientious objector cases. The Court started by asserting that ‘‘in no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man’s predicament in life, in death or in final judgment and retribution.’’ The Court then attributed to Congress the intent to include within its conscientious objector provision ‘‘the ever-broadening understanding of the modern religious community.’’
The Court thus interpreted the statutory term ‘‘religious’’ by reference to the broad ideas of modern theologians such as Paul Tillich. At one point the Court noted that, in developing its standard, it was reminded of Tillich’s notion that God is ‘‘the source of your being, of your ultimate concern, of what you take seriously without any reservation.’’ The Court derived the basic holding of the case from this concept of an ‘‘ultimate concern.’’ According to the Court, the statutory term ‘‘religious training and belief ’’ applied to anyone who expressed a ‘‘sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.’’ The Court then used this definition to extend conscientious objector status to several individuals whose religious views were abstract and theologically unspecific. In a later decision the Court would extend its broad approach to the concept of religion to cover applicants whose views bordered on Atheism.
Bifurcating the Definition of Religion Despite the fact that the Court’s conscientious objector decisions technically only involved a matter of statutory interpretation, the decisions had clear constitutional overtones. Indeed, Justice Harlan noted that the Court’s rather tortured interpretation of the statute was necessary because ‘‘limiting this draft exemption to those opposed to war in general because of theistic beliefs runs afoul of the religious clauses of the First Amendment.’’ Thus, the Court’s broad interpretation of religion became the touchstone of the Court’s modern Free Exercise Clause decisions. Under these decisions, the Court extended constitutional protection to members of nontraditional religious groups, such as the Native American Church, as well as individuals whose religious beliefs were derived solely from their individual religious introspection, rather than from a specific organized faith.
The Court has not, however, applied this same expansive view of religion to its interpretations of the Establishment Clause. At first glance, this seems inconsistent with the constitutional text, which mentions the word religion only once and seems to imply that the term should be defined identically with regard to both clauses. The problem with this interpretation is that it would create serious difficulties for any modern government. Everything that modern government does in some way exerts an impact on what some people ‘‘take seriously without reservation.’’ If this expansive definition were used consistently in all First Amendment contexts, virtually everything the government does would potentially be activity ‘‘respecting an establishment of religion.’’
In response to this problem, some constitutional theorists have suggested bifurcating the First Amendment definition of religion. Under this scheme, the courts would use a broad definition of religion in enforcing the Free Exercise Clause (to provide the broadest possible protection of individual liberty) and a narrow definition in enforcing the Establishment Clause (to give government the broadest possible authority in the areas of education and social services). One such suggestion is Laurence Tribe’s early recommendation that the Free Exercise Clause should protect all ‘‘arguably religious’’ activities and that the Establishment Clause should permit government to engage in any ‘‘arguably nonreligious’’ action.
This suggestion generated its own negative response. There are two main criticisms of the argument for a bifurcated definition of religion. The first is that this argument conflicts with the unitary implications of the constitutional text. The second is that a bifurcated definition would create three different tiers of religion, each of which would receive different constitutional treatment. Under such a system, a traditional form of religious belief would be unquestionably religious and therefore actions motivated by this belief would receive free exercise protection, but the religion would be prohibited from receiving direct government support or endorsement. Conversely, secular beliefs that are unquestionably nonreligious would receive no free-exercise protection, but would not be barred under the Establishment Clause from receiving direct government support or endorsement. Any category of beliefs and actions that included some religious elements along with some secular elements, however, would receive favorable treatment under both constitutional provisions because such beliefs would be arguably religious and arguably nonreligious.
Modern Definitions for Establishment Clause Cases
For whatever reason, the Supreme Court has never adopted a bifurcated definition of religion. It has also, however, never defined religion in the Establishment Clause context. In Edwards v. Aguillard, 482 U.S. 578 (1987), a case involving state-mandated teaching of Creationism, the Court emphasized that ‘‘concepts concerning God or a supreme being of some sort are manifestly religious’’; however, the Court has never stated whether any other indicia of religion are necessary or sufficient to trigger the application of the Establishment Clause. The lower courts have occasionally mentioned other factors that contribute to a finding that a particular set of beliefs is religious. In one prominent case, Judge Arlen Adams mentions three factors: whether the beliefs concern fundamental problems of human existence; whether the beliefs purport to provide a comprehensive belief system; and whether the beliefs include the formal indicia of religion, such as an administrative structure, rituals, clergy, liturgies, and holidays.
The Supreme Court has embraced no single test that will definitively determine in every case whether an Establishment Clause case implicates ‘‘religion.’’ Conversely, the test for religion announced by the Court in the conscientious objector cases is so broad that the Free Exercise Clause is potentially implicated in a variety of different contexts. In the end, the courts seem to have settled on an instrumental as well as intuitive definition of religion. The definition applied in the Establishment Clause context is narrow enough to permit the government to do its modern job of providing social services and operating public schools that teach a broad range of subjects (including controversial topics such as morality and evolution). Conversely, the definition of religion applied in the free-exercise context is expansive enough to avoid having any citizen suffer at the hands of the government solely because that person’s unpopular religious beliefs offend the political and religious majority.
STEVEN G. GEY
References and Further Reading
Choper, Jesse H., Defining ‘‘Religion’’ in the First Amendment, U. Ill. L. Rev. 579 (1982).
- Feofanov, Dmitry N., Defining Religion: An Immodest Proposal, Hofstra L. Rev. 23 (1994): 309.
- Freeman, George, The Misguided Search for the Constitutional Definition of ‘‘Religion,’’ Ga. L. J. 71 (1983): 1519.
- Greenawalt, Kent, Religion as a Concept in Constitutional Law, Calif. L. Rev. 72 (1984): 753.
- Note, Toward a Constitutional Definition of Religion, Harv. L. Rev. 91 (1978): 1056.
Cases and Statutes Cited
- United States v. Macintosh, 283 U.S. 605 (1931)
- United States v. Seeger, 380 U.S. 163 (1965)
See also Accommodation of Religion; Atheism; Ceremonial Deism; Concept of ‘‘Christian Nation’’ in American Jurisprudence; Free Exercise Clause (I): History, Background, Framing; Religion in ‘‘Public Square’’ Debate; Selective Draft Law Cases (1918), Selective Service Act of 1917