Law Religion Religious Practice

Religion, Religions, Religious: The Problem of Definition and Why Freedom of Religion is Illusory — Part I

As director of the Religious Studies Program at the premier public university in the state, I am frequently the first point of contact for inquiries related to the role of religion in public life and the relationship between religion and government – precisely the relationship governed by the first clause of the Bill of Rights of the U.S. Constitution. 

The questions run the gamut:

  • •   From a county sheriff:  Is wearing a headscarf “really” a necessity for Muslim women?  Do we need to provide them for incarcerated Muslim women?
  • •   From attorneys seeking expert witnesses:  Who could serve as an expert witness in a case involving cannabis possession and whether smoking marijuana is “really” a sacrament in Rastafarianism?  Who could serve as an expert witness in a case involving accommodating Muslim prayers in the workplace?
  • •   From the press:  Is Qur’an burning legal? Is it covered by the free speech clause or the freedom of religion clauses? 
  • •.  From ordinary citizens:  Is Scientology really a religion?  Can the police get my child out of it?
  • •.  From students:  Can I the class I took at Bethel University on Christ’s saving grace transfer to the UofM? 
  • •.  And from fellow staff members: What legitimate holidays for Buddhism should be included in the list we provide to faculty for accommodating student religious observances?  

Such questions all fall under the purview of the first two clauses of the First Amendment:

The US Congress shall make no laws respecting the establishment of religion or prohibiting the free exercise of religion.  

Taken together, these clauses are understood as foundational for separating church and state: in creating a nation in which religion is not an arm of the state (or vice versa) and in which individuals are free to practice their religion as they wish. 

At least that’s the theory. Although the first clause of the First Amendment seems straightforward, in practice the religious freedom clause is highly ambiguous, and that ambiguity rests on the very term “religion.” This post explores a few of the challenges that face U.S. courts and ordinary Americans in understanding what “religion” is in the abstract and in deciding what activities are legitimately religious and thus eligible for protection under the First Amendment.  

To enforce the First Amendment, we need to know what “religion” is and what practices are legitimately “religious.”   And there’s the rub.  Typically, we all know what religions are – if I asked you to name some religions we could come up with a long list: Buddhism, Islam, Judaism, Christianity, etc. But what qualifies as “religion”—in the abstract, as a general category?  Does any specific characteristic unite all of these separate traditions?  And who decides? Must religion, for instance, be about a belief in spiritual beings? Probably not, as this definition leaves out many Buddhists. Must religions have a long history? Or can they be of recent origin like Mormonism or Christian Science?  Must it have texts or scriptures? Or do indigenous, non-written practices count?

The definition of “religion” matters because depending on how we definite it, some groups will inevitably fall outside of that definition—and declared non-religions they are not eligible for protection under the free exercise clause.    

And the problems do not stop there, for even within traditions that we agree are religions, we then must ask what constitutes “legitimate” religious practice?  What actions or practices qualify as truly “religious” under the free exercise clause?  And what ones do not?  And who decides? 

At the time the Bill of Rights was written (1789-91), the answers seemed relatively straightforward.  Christianity and Judaism were pretty much the only “religions” of concern by the western, enlightenment-inspired political thinkers who famed the Constitution. Many groups we now understand as “religions” and many practices we see as “religious” were not originally included in that category:  Islam, Hinduism, Buddhism, indigenous societies, for instance, were not necessarily seen as “religions,” as Christianity was understood as one, until the turn of the twentieth century. The consequences of this exclusion were dire for some. Native Americans, for instance, understood by Western Christians as “heathen” –that is, not having “religion” –were not only forcibly deprived of practices and materials that we now clearly consider religious, but also of other cultural traditions, their land, their children, and in many cases life itself.

Things changed over the course of the twentieth century, however, particularly as immigration expanded the U.S. population of Jews, Buddhists, Hindus, Sikhs, Christian Orthodox, Muslims, and others. In addition, a host of alternative religious groups with Protestant roots expanded –Mormons, Christian Scientists, Jehovah’s Witnesses, Spiritualists, and so forth. The practices of all of these religious groups—their buildings, prayer practices, foodways, sartorial preferences, proselytizing efforts, refusal of medical treatment, even seances and tarot readings–all claimed a place in the public sphere, and reshaped how American thought about “religion.” 

What was “religious” now posed challenges to the former Protestant hegemony, challenging the way businesses were conducted, the way Americans understood time and the days of the week, and the relationship between individuals and the state.  Jews wanted Saturdays off as the sabbath rather than Sundays; Jehovah’s Witnesses refused to take oaths,  to say the pledge of allegiance, to allow blood transfusions; Mennonites fought for conscientious objector status in the military; Jewish men in the US military petitioned to wear kippahs, and so forth.  Accommodation of religious practices grew as religious diversity expanded, particularly after 1965 when US immigration quotas were relaxed for some parts of the world.  Requests for accommodation of religious practices – in the workplace, schools, and other public arenas – has grown apace in the past few decades: Muslims seek accommodations for prayer; Sikhs for carrying their traditional ceremonial knife or kirpan; Jewish students for holiday observance. Christian Scientists, Amish, and others have fought for the right to refuse medical treatment — including refusing treatment for their children.  Many such situations end up in the legal system, requiring courts to decide which practices are authentically “religious” and thus must be accommodated, and which ones are not.

When accommodations do occur, conflicts and contentions can arise as others feel slighted or resentful. Such feelings often align with other social and cultural narratives about certain religions themselves, resulting in efforts to keep some groups out of the category of “real” religion:  Should Scientology have the same tax exempt status that other religions enjoy, some people ask, arguing that  it is “not a real religion.” Aren’t Wiccans just a cult and “not a real religion”?  Islam is frequently targeted as being not a religion but a political system, prompting the US Attorneys General Office has stepped in to curtail local efforts to declare Islam not a religion in law. Nevertheless, efforts to prohibit Islamic religious practices remain common. Some 20 states have enacted legislative bans and restrictions on the practice of Islamic religious law. Efforts like these to de-legitimize traditions and communities spring from a variety of motivations, political, xenophobic, and economic.  They provide excuses for discrimination against individuals and for exclusion from legal protections that members of “legitimate religions” enjoy.  

Given this history of what counts as a “real religion”—and is thus protected by the First Amendment—how we define the term “religion” carries high stakes.  But the problem of definition does not stop here, for even when there is agreement that a particular tradition is, in fact a “religion,” what counts as “religious” can also be quite slippery. I will address this topic in my next entry. 

This post is condensed from a talk given at the Minnesota Daily’s First Amendment Celebration, September 24, 2019 

The views expressed here are solely those of the author and do not necessarily reflect the opinions of the RPUC as a whole or the University of Minnesota.