Does it matter what religion is?

• Author: Eisgruber, Christopher L.
• Position: Symposium: The Supreme Court's Hands-Off Approach To Religious Doctrine

INTRODUCTION: THE MONTY PYTHON PROBLEM

One memorable conceit of the Monty Python comedy troupe was the problematic weapon developed by the English military during World War II. The weapon was a joke so funny that upon hearing it the auditor died laughing. Unfortunately, the weapon suffered from a fatal defect: no one could learn the joke in order to deliver it without suffering the fate intended for the enemy. You can imagine how the sketch unfolds. (1) A dedicated soldier walks into a shed with sheaf of paper ... uncontrolled laughter is heard ... then a gasp and a crash. And so on, through many zany iterations.

On some accounts, religious liberty may be self-destructive in much the same way as the undeliverable joke. The problem goes roughly like this: in order to protect religious liberty we have to define what religion is, and once we are in the business of saying that some beliefs, commitments, and projects are entitled to special treatment as "religious" while others are not, we are creating a sphere of orthodoxy of exactly the sort that any plausible understanding of religious liberty should deplore.

In earlier work, we have illustrated this problem with the story of the two Ms. Campbells who live across the street from each other in a suburban community. (2) Both want to run soup kitchens for the poor, and both suffer from a zoning regulation prohibiting that activity. (3) One Ms. Campbell understands the teaching of her faith to demand good works of this sort, and believes herself to be under personal command from her god to run her soup kitchen. (4) The other Ms. Campbell, if asked, would say that religion has nothing to do with her enterprise; she cannot stand the suffering of innocent persons, and takes widespread, poverty-driven hunger to be something that any responsible person would seek to ameliorate. (5) Giving the first Ms. Campbell a privilege to disregard the ordinance on the grounds that she is religiously motivated, while denying that privilege to the second Ms. Campbell, seems patently unjust. Indeed, it seems to be an affront to religious liberty itself. Hence the possibility that religious liberty will of necessity come unstrung in the same paradoxical way as the Monty Python joke weapon.

Can religious liberty be spared this fate of self-destruction? To put the question more narrowly, can an attractive regime of religious liberty be built which does not insist on decisions about whether one or another of our Ms. Campbells is appropriately religious to be its beneficiary? If not, then the Constitution's commitment to religious freedom would require the government to choose among controversial conceptions of religion for the very purpose of identifying which beliefs enjoyed constitutional protection. It would matter very much, in other words, that courts be able to say exactly what religion is.

We have no doubt that it does matter, for many purposes and in many ways, what religion is. It matters, for example, that there is a domain of human activity and experience which we call religion, that we are broadly capable of distinguishing that domain from other realms of activity and experience, and that we can call out the cultural and personal characteristics that are common to much activity and experience that we recognize as religious. The distinction between religion and nonreligion is a significant ethical guidepost in many people's lives. Sociological studies of civil society almost certainly need to take account of religion and its impact. And it is hard to imagine how historical, philosophical, or legal conversations about religious freedom could proceed without a common, general understanding of what religion is and what role it has played and continues to play in a given time and place.

But for these purposes--however profound and important they may be--close and controversial definitions of what counts as religion at the margins are not likely to be crucial. More importantly, it does not follow from these familiar contexts in which we find ourselves distinguishing religion from other activities that a robust and attractive regime of religious liberty has to make close and controversial judgments that qualify some activities as religious and disqualify others. It does not follow--to take our ruling example--that American judges have to decide whether the second Ms. Campbell is religiously motivated or not. Indeed, we will argue that that question is entirely irrelevant to the administration of a well-formed regime of religious liberty. More generally, we will argue that just where competing theories about the definition of religion become controversial and interesting, they also become irrelevant to constitutional law. Insofar as definitions of religion are needed at all, conventional, common sense definitions will suffice.

Our starting point for these reflections is the judiciary's hands-off approach to questions of religious doctrine, which was the focus of the American Association of Law Schools' Law and Religion section panel in January, 2008. Long-standing Supreme Court precedent declares that courts ought neither to resolve "controversies over religious doctrine and practice" nor decide the "interpretation of particular church doctrines and the importance of those doctrines to the religion." (6) The idea that courts should keep their hands off questions of religious doctrine rarely excites much controversy among lawyers or constitutional scholars. And why should it? The entire project of disestablishment might, after all, be characterized as a kind of hands-off approach to religious doctrine.

Some commentators, however, think that while the hands-off approach may be well motivated, it simply is not possible for courts to stay above the fray of conflicting religious understandings. Their doubts divide into two categories. One category pertains directly to the hands-off approach. This category consists of mild, pragmatic concerns focused on a discrete line of cases involving contracts, bequests, or other private law instruments that refer to religion. For example, Kent Greenawalt has discussed cases in which a church has accepted a gift subject to restrictions that refer to some aspect of religious doctrine. (7) If a dispute later arises about whether the church has honored the restriction, a court may have to address some questions of religious doctrine; if it declines to do so, it will effectively limit the freedom of donors to make, and churches to accept, legally binding restrictions on gifts.

We will comment briefly on this first category of concerns. But, interesting as these questions may be, they fine-tune rather than threaten to upend the enterprise of securing religious liberty. Our focus will be on the second category of concerns, which, by our lights, is very threatening indeed. This category consists of arguments suggesting that any viable theory of religious freedom must endorse one or another controversial definition of religion. (8) The idea is, roughly speaking, that religious freedom is about protecting religion, and that courts will not be able to recognize the activity that they are trying to protect if they cannot define it precisely. How, for example, can you know whether the second Ms. Campbell is protected by the Religion Clauses of the Constitution (9) without knowing whether her commitment to alleviate the suffering of the hungry poor qualifies as religious? (10)

This argument can then lead in either of two directions. It can give in to the complaint that there is an embarrassing hole in the center of the Court's religious liberty jurisprudence, and that controversial as any such effort will be, it behooves the Court to decide what counts as "religion" within the meaning of the Constitution's Religion Clauses. Or this argument can cut deeper still, and lead to the conclusion that religious liberty is indeed self-defeating in the same way as the Monty Python killer joke: you cannot protect religion without knowing what it is, but once you say what religion is, you have undone religious liberty. (11)

In our view, the idea that you must be able to define religion in order to defend religious liberty rests on a mistaken understanding of religious freedom, and more narrowly, of the normative thrust of the Religion Clauses of the Constitution. We have argued elsewhere that their purpose is not to protect religion per se, but to protect Americans from a certain kind of governmental malfeasance that proceeds against the backdrop of a religious and religiously diverse society. (12) In a religiously diverse society, government can find itself captive of a perspective that encourages it--out of hostility, indifference, or misunderstanding--to take action that unjustly prefers or disfavors some persons, viewpoints, identities, or practices. What is critical from the vantage of religious freedom is not that religion or religiosity be the victim of this injustice, but rather that it is the cultural and political ramifications of religious diversity and governmental capture that give rise to the injustice. (13) This may at first blush seem like a technical refinement, but, as we will show in the pages that follow, it makes theoretical debates about the meaning of "religion" irrelevant to the interpretation of the Religion Clauses of the Constitution.

If a municipal zoning ordinance, for example, permitted one of our two Ms. Campbells to run her soup kitchen, and prohibited the other from doing so, on the basis of the difference between the belief structures that moved each of them, that ordinance would be a deep affront to religious liberty. And that would be so whichever Ms. Campbell was favored, and whether or not we were inclined to think of the second Ms. Campbell as religiously motivated.

We will elaborate this crucial point in the concluding sections of this essay. But before we do that, we will attend more closely to the hands-off doctrine...