What Counts as “Religion”?

What Counts as “Religion”?

Treating religious claims as strictly experiential-expressive can help carve out a space for religious free exercise, over against its cultured despisers. But this is a profoundly unstable space. For one thing, it generally abandons the possibility of giving a normative account of the good of religion as such. One can point to the meaningfulness of religion in the lives of its adherents, but it is denied any possibility of relevance to reality itself. And, of course, one forfeits any principled reason to claim that the Satanic Temple is “not a religion”—even though, by any standard definition, it clearly is not.

Last month, a grotesque little display popped up in the Iowa Capitol: a shrine to the horned god Baphomet, erected by the “Satanic Temple.”[1] To be clear, the Satanic Temple doesn’t revere a literal Satan. It’s a secular-progressive organization with a 1980s edgelord aesthetic, swiping at conservative appeals to religious liberty.[2] You say you want religious freedom? Well, that means freedom for us Satanists too. See how you like it now!

The display didn’t last. Ex-fighter pilot Michael Cassidy tore it down (and was later arrested).[3] Since then, much of the conversation surrounding the incident has focused on whether Cassidy did the right thing—and whether any legal rationales for the Temple’s use of the space can justify having a Satanic display set up in the halls of governance.

Those debates are noteworthy. And yet, beneath the surface of these arguments is a much deeper question: what is a “religion,” and who gets to define it?

Most people naturally intuit that to the extent it exists solely to mock other faiths, the Satanic Temple isn’t a bona fide “religion.” Its “fundamental tenets” are nothing more than banal left-liberalism, such as the claim that “[b]eliefs should conform to one’s best scientific understanding of the world. One should take care never to distort scientific facts to fit one’s beliefs.”[4] There is nothing here of divinity at all, and decidedly no affirmation of an actually existing Satan to whom one swears fidelity.

But the category of “religion” becomes slippery whenever such notions are invoked. For instance, insisting on belief in “a Supreme Being” as the sine qua non of religiosity would seem to exclude traditions widely understood to be “religions.” Could such a definition extend to the “emptiness” lying at the core of Theravada Buddhism, or the theologies of immanence that characterize modern neopaganism?[5]

Plenty of academics have thrown up their hands and declared the question simply hopeless. As Jason Ānanda Josephson Storm notes, “most scholars trained in Religious Studies today now consider it naive to presume ‘religion’ as a concept. . . . in many quarters the rejection of ‘religion’ as an analytical object approaches the consensus view.”[6]

Such a rejection, though, is a discipline-specific luxury. The First Amendment flatly declares that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. The category of “religion,” for all its conceptual instability, is firmly embedded in American constitutional law (and echoed in a myriad of statutes). Justices and judges can’t simply make the postmodern move and refuse to answer the question—at least not if they want to keep their jobs. Somehow, “religion” must be defined—and yet, supposedly, it cannot be.

To be clear, this is not a theological-philosophical problem that can be resolved in the space of a single article. What this piece aims to offer is something far more modest: a direction of inquiry that judges and Justices might consider when (inevitably) they are forced to reassess the matter. As appeals to “religious liberty” grow more and more contested, the Satanic Temple, or its imitators, will keep coming, pushing at the boundaries of the concept. The ultimate goal seems to be that scandalized Christians eventually settle for some sort of laïcité and a sterile public square. Christians ought to seek a better world than that.

Begin by clearing away some jurisprudential brush. Some might argue that the question of defining “religion” can be deferred indefinitely through consistent application of originalist methodology—that is, by pointing to historical examples of what counted as “religion” at the time of the Founding, which the First Amendment clearly protects.

The point is well taken. Courts can in practice make this move and avoid the deeper question. The Supreme Court, with its power of discretionary review, need not entertain cases likely to disrupt its existing precedents.[7] (The same is true of many state supreme courts.) From a public-order perspective, there are probably good reasons not to reopen the issue.

But from a theoretical standpoint, this is not especially satisfying. And it leaves questions unanswered that are not clearly resolvable within a narrow historical frame.

It is widely accepted today that the First Amendment’s protections are not limited to Christian (or even Abrahamic) faiths.[8] But there is ample reason to believe that the eighteenth-century drafters of the Constitution, like most other Westerners of the time, would have superimposed Western Christian conceptual frameworks upon religious traditions that in principle diverged sharply from the Jewish-Christian tradition. For example, assuming arguendo that Native American religious practices were originally cognized by the First Amendment, when these traditions speak of a “Great Spirit,” are they referring to a transcendent Creator (e.g., the God of the Abrahamic faiths), or referring to an immanent life-giving power not metaphysically distinct from the world?[9] If the latter, would those Native traditions count as “religions” at all? In the same vein, John Adams’s remarks on Hinduism suggest that he interpreted the tradition through a decidedly Western/Abrahamic lens.[10]

Hence, the deeper question can itself be transposed into an originalist key. To what, exactly, does the First Amendment’s protection for free exercise extend: a religious tradition as such, or the Founders’ inapt understanding of that religion? Is there principled room in the First Amendment for “religion” that does not in fact fit an implicitly Abrahamic paradigm?[11]

In general, the Founders were not what are today called “theologians of religions” or “comparative religionists.” Their use of a familiar theological-philosophical category (that is, religion) was an unanalyzed use (though understandable given the limits of the time). But now, when confronted with more challenging cases and the benefit of deeper knowledge of theological traditions, judges are not exempted from the responsibility to think through this question more systematically.

And that is, in fact, what the Supreme Court has tried to do—for better or worse.

Today, the vast majority of religious liberty cases heard by the modern Supreme Court do not involve fringe groups. The highest-profile court battles usually involve clashes between defenders of traditional Christian commitments and advocates of contemporary views on sex and gender. These cases are selected precisely because they offer clear opportunities for unsettled legal questions to be resolved and (for the most part) avoid getting bogged down in messy procedural issues or questions of disputed fact.[12] In this context, there is simply no reason to reopen questions regarding the nature of religion as such. Nobody seriously contends that Christianity (or Judaism, or Islam) is not a religion for First Amendment purposes.

But in at least two particular contexts, the question becomes much more difficult: cases involving the Religious Land Use and Institutionalized Persons Act (RLUIPA), and determinations of conscientious objector status. As relevant here, RLUIPA (enacted in 2000) protects the rights of prisoners to their free exercise of religion while incarcerated. In practice, this often looks like providing special diets or other exceptions to standard prison practice (such as, in the case of a Muslim prisoner, the privilege to grow a short beard).[13] In making such determinations, courts must evaluate whether a prisoner’s supposed religious practice is in fact religious at all.

And the matter becomes even more fraught when questions of the military draft—questions of risk of death—are involved. That’s why, during the Vietnam War, the Supreme Court was required to address directly the sort of belief that properly counts as “religious” for purposes of conscientious-objector status.

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