The Supreme Court’s Confusion About “Religion,” It Can’t Define It

Believe it or not, the U.S. Supreme Court has never actually defined “religion.” Nor has the Court ever defined “God.” In fact, the Court has established no standard for referring to “religion” other than evolving and inconsistent concepts.

Many of the Court’s definitions of religion actually use the word “religion” to describe religion itself. Which is why the little to no guidance the Court has offered continues to provide confusion.

In 1890 the Court referred to “religion” using traditional theistic terms like a “Creator.”

But by 1948 the Court’s references to “religion” or “God” became more obscure while it simultaneously prohibited teaching “religion” and barred the freedom to worship and/or pray in public schools. As a result of several prayer in public school cases the Court classified “religion” as relating to a person’s belief in or disbelief in a “particular God” and also no belief at all.

The Court ruled in 1965 that religion could include one’s “objection outside of the religious orthodoxy” (United States v. Seeger). In other words, “non-orthodox” “religion” also could be considered a “religion.”

In the 1970s however, when ruling on cases related to “conscientious objector” status, the Court stated that even political beliefs–“deeply held moral and ethical beliefs”– could be considered “religious” depending on the level of their sincerity (Welsh v. United States). According to this interpretation, “religion” could actually be defined by anyone’s belief about anything regardless of the variance of its political or philosophical content. And “religious training” through which an “individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation” could outweigh governmental authority.

This definition evolved within a decade when by the early 1980s the Court moved away from associating “religion” to moral and ethical beliefs. It ruled that the Free Exercise Clause only applied to a “religious” belief or practice and that only beliefs “rooted in religion are given special protection to the exercise of religion.”

Most recently, the Court has ruled on “religious freedom” cases related to not requiring owners of companies to provide services (ie. birth control, abortion) to their employees that violate their religious beliefs. Likewise, the Court ruled that businesses cannot prevent employees from exercising their “freedom of religion” at work (wearing a head scarf), ranging from their wardrobe to transportation to time off.

Remarkably, the very court responsible for ruling on First Amendment Religion Clause cases still has not defined religion.

If the Court cannot or will not define religion, how can it adequately rule on it?

Even the Constitution– the law the Court must interpret– also leaves room for what constitutes “religion.”

While the Free-Exercise Clause prevents the government from making a law “prohibiting the free exercise of religion,” the clause does not mean that “no law” actually means “no law.” The Equal Protection Clause of the Fourteenth Amendment allows both federal and state government to legally restrict, in certain circumstances, how a religious belief is practiced, while still allowing freedom to believe in whatever religion one chooses. (For example, courts have made illegal religious practices such as polygamy, human sacrifice, incest, or child marriage.)

Yet, there are limits to these limits. And the Supreme Court has long been divided over determining them, especially when considering various standards, such as the “Lemon” or “Sherbert” tests. Many state constitutions enable the applicability of the “compelling-interest” test, however, other states have less protection for free-exercise claims.

It remains unclear as to whether or not the nebulous description of “religion” will satisfy the American legal system or clarify ongoing confusion, and often controversial, First Amendment Religion Clause cases.

June 23, 2016

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