Religion and Secularism in Constitutional Interpretation and Democratic Debate

AuthorKurt T. Lash
Pages2173-2175

Page 2173

Although the FIRST AMENDMENT forbids any law "respecting an establishment of religion, or prohibiting the free exercise thereof," the term "religion" is not defined. In its first efforts to define the term, the Supreme Court adopted a theistic approach: In DAVIS V. BEASON (1890), the Court described religion as "[having] reference to one's views of his relations to his Creator, and to the obligations they impose or reverence for his being and character, and of obedience to his will." Similarly, in 1931, Chief Justice CHARLES EVANS HUGHES wrote that "the essence of religion is belief in a relation to God involving duties superior to those arising from any human relation."

Theistic definitions of religion most likely reflect the majority view of those who drafted and adopted the Constitution. The nineteenth and twentieth centuries, however, brought increasing numbers of nontheistic and pantheistic religious adherents to the United States. Responding to both the rise of religious pluralism and modern developments in systematic theology, in the 1960s and 1970s the Court experimented with broader definitions of religious belief. In UNITED STATES V. SEEGER (1965), the Court considered the conscientious-objector provisions of the Military Training and Service Act. After canvassing the works of modern theologians including Paul Tillich, the Court interpreted the act's accommodation for "beliefs in relation to a Supreme Being" to include objections based on what Tillich called one's "ultimate concern." Under this definition, any strongly held belief would qualify as religious. Expanding on this theme, in Welsh v. United States (1970), the Court held that "religious beliefs" protected by the act included any belief analogous or "parallel" to those of a religious person. Applying this definition, the Welsh Court rejected the defendant's own assertion that his beliefs were not religious. According to the Court, "very few registrants are fully aware of the broad scope of the word 'religious' as used in [the Act]."

Although the Court was interpreting a statute in the SELECTIVE SERVICE cases, its broad definition of religion was motivated by a concern that any narrower approach would violate the ESTABLISHMENT CLAUSE. Such a broad definition of religious belief, however, creates a host of conundrums: If any belief is at least potentially religious, how is the term "religion" meaningful as a class of beliefs and activities receiving unique protection under the free exercise clause? Moreover, expansive definitions of religion...

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