The concept of religion.

• Author: Penalver, Eduardo

1. INTRODUCTION: WHY A CONSTITUTIONAL DEFINITION OF RELIGION IS DESIRABLE

   The First Amendment guarantees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."(1) The great majority of modern judicial decisions interpreting the Religion Clauses have focused on determining what constitutes a "law respecting the establishment" or what is involved in "prohibiting the free exercise."(2) Far less frequently, however, have the courts expressly considered the meaning of the concept that stands at the very heart of the Religion Clauses: religion. At first glance, such an endeavor may seem to be altogether unnecessary. Religion is a commonly used and widely understood term in our everyday language, not some obscure term of art in need of technical definition. Indeed, when the Supreme Court discusses "religion," most of the time it uses the word unreflectively, as if it were completely self-defining.(3)

   This laissez-faire approach assumes that religion should be used for constitutional purposes in the same way that it is used in everyday language and, further, that its meaning and application are readily apparent.(4) Many words used in the Constitution, however, are assigned completely different meanings for purposes of constitutional adjudication from those they possess in everyday language. "Speech" is one obvious example. Constitutional protection of "speech" under the First Amendment goes far beyond what we normally mean when we use the word,(5) covering such diverse forms of expression as burning the American flag,(6) wearing a black armband,(7) and picketing with a sign.(8) On the other hand, many words (for example, majority"(9)) possess the same meaning in constitutional jurisprudence that they have in everyday language. To argue, then, that no definition of religion is necessary is to say that "religion" is more like "majority" than it is like "speech." Such a position, however, requires justification. In other words, even to deny the need for a definition of religion for the purposes of constitutional adjudication is to propose a definition of sorts (that is, "the everyday, clear meaning of the term"), one that must be defended.(10) In a sense, then, the discussion of a constitutional definition is unavoidable.

   Moreover, the definition of religion for First Amendment purposes is not merely an academic exercise on which nothing really turns. In Malnak v. Yogi,(11) for example, a federal court's decision to classify the Science of Creative Intelligence-Transcendental Meditation (SCI-TM) as a religion meant that it could no longer be taught as an elective in public schools. In Africa v. Pennsylvania,(12) the Third Circuit's decision not to recognize MOVE as a religion resulted in its refusal to grant Frank Africa free exercise protection for his requested diet of raw foods while in prison. In these and other cases, one sees most clearly what is potentially at stake in defining "religion" for the First Amendment.(13)

   Because the classification of a group or individual as religious or nonreligious is directly related both to the provision of benefits under the Free Exercise Clause(14) and to the imposition of burdens under the Establishment Clause,(15) fundamental notions of fairness require that courts be prevented from making arbitrary or inequitable classifications. The danger of bias in Religion Clause jurisprudence is a very real one. Given the fact that, as Frederick Gedicks points out, "[n]o Jewish, Muslim, or Native American plaintiff has ever prevailed on a free exercise claim before the Supreme Court,"(16) there is reason to be concerned that bias might operate in judicial efforts to define religion.(17) One way to restrain potentially arbitrary decisionmaking is to reduce the scope for judicial discretion regarding the constitutional meaning of religion.

   Scholars have suggested a wide variety of definitions for "religion" in the First Amendment. A 1978 note in the Harvard Law Review advocated a functional approach to the definition of religion that would treat "religion" like "speech" and protect a very broad range of belief systems--whatever constitutes a person's "ultimate concern."(18) The note's proposal has been persuasively criticized by Jesse Choper, however.(19) Several scholars, rejecting a broad definition like that endorsed by the Harvard note, have proposed content-based definitions; that is, they have attempted to find some essence within all religious belief systems according to which such systems can be distinguished from nonreligious belief systems. Choper, for example, has proposed a definition based upon the presence of a belief in "extra-temporal consequences" to human action.(20) Andrew Austin has proposed a definition based upon the presence of "faith."(21) George Freeman, however, has presented a devastating critique of efforts to elaborate content-based definitions of religion.(22) Along with Kent Greenawalt,(23) Freeman has proposed an analogical approach to determining what constitutes a religion; that is, a methodology for deciding if a belief system is or is not a religion, rather than a definition in the dictionary sense.(24)

   In this Note, I advocate construing "religion" under the First Amendment in its evolving, everyday sense. In so doing, I seek to build upon the work of Freeman and Greenawalt by developing in more detail their analogical methodology for determining whether or not a specific belief system is a religion. In Part II, I survey the present judicial disagreement regarding the best way to define religion. In Part III, I explore three preliminary issues: I begin by arguing that "religion" in the First Amendment should be read narrowly to refer only to religion and not to some broader concept like conscience; I then reject the possibility of a dictionary-style definition (that is, one that simply lists the "essences" of religion); and finally, I highlight the problem of western bias in the definition of religion. From this exploration I develop three criteria that any sound constitutional definition should satisfy. In Part IV, I draw upon the work of Freeman and Greenawalt to argue that the best way to determine whether or not a belief system is a religion is through a process of analogy, based upon Ludwig Wittgenstein's philosophy of language. I therefore propose a methodology for conducting this analogical process that takes into account the evolutionary nature of language and (in an effort to improve upon the proposals of Greenawalt and Freeman) tries to minimize the scope for judicial bias. Although I do not believe that my proposed methodology is a perfect solution, I think it represents a significant improvement over present definitions.

2. THE LACK OF CONSENSUS IN THE COURTS

   1. The Supreme Court

      Although the Supreme Court has been reluctant to elaborate an authoritative definition of religion, it has addressed the issue in a number of cases stretching back into the nineteenth century.(25) The first of these cases was Davis v. Beason,(26) an 1890 decision upholding an Idaho law that required electors to swear an oath that they were not polygamists. Davis, a Mormon, was convicted of falsely swearing to the oath. As part of a challenge to his conviction, he argued that the law represented an establishment of religion insofar as it prevented Mormons from acting as electors in the Idaho territory. In the course of his opinion for the court rejecting Davis's claim, Justice Field defined religion theistically.

      Defending the required oath, Justice Field outlined his understanding of religion: "The term `religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will."(27) In addition to the presence of a "Creator," Field also required a certain conformity between the teachings of the group in question and the prevailing morality of "all civilized and Christian countries."(28) Indeed, at least part of the reason Field rejected Davis's establishment claim was that he thought polygamy too outrageous a practice to be "a tenet of religion."(29)

      Adherence to this narrow definition was facilitated by the relative religious homogeneity of the United States before the twentieth century.(30) Indeed, the connection between the religious demography of the United States (at least as perceived by the Court) and the narrow conception of religion was made explicit in United States v. Macintosh,(31) a case that reaffirmed the theistic definition. "We are a Christian people," the Court wrote, "according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God."(32)

      Over the course of the twentieth century, largely as a result of immigration, the United States experienced an explosion both in the population of non-Christians and in the number of different religious sects operating within the country.(33) The resulting increase in religious diversity put pressure on the Court's narrow, theistic definition of religion and on the related understanding of the United States as a Christian country.(34) The Davis definition was not expressly repudiated, however, until 1961 in Torcaso, v. Watkins.(35) In Torcaso, the Court struck down a provision of the Maryland constitution requiring officeholders to declare their belief in God. The Court reasoned that such a provision favored one category of religions (theistic) over another (nontheistic) in violation of the Establishment Clause.(36) For the first time, the Court admitted the existence of nontheistic religions and extended First Amendment protection to them. In a famous footnote, Justice Black observed that "[a]mong religions in this country which do not teach what would generally be considered belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and...