The Catholic Thing
What Counts as “Religious” in Law? Print E-mail
By Gerald Russello   
Thursday, 03 April 2014

Does it matter how we define “religion”? Mark Movsesian, a law professor at St. John’s University, recently gave a paper on the rise of the so-called “nones,” those Americans who claim no explicit religious affiliation. By some measures, nones account for 20 percent of the adult population, and among millenials maybe as high as 30 per cent.

These people are not necessarily atheists, of course. Some will join a more formal religious affiliation as they get older (especially if they have children, as Mary Eberstadt discusses in her recent book How the West Really Lost God), and some consider themselves “spiritual but not religious.” However, taken as a whole they represent a new, significant group that may effect how the courts understand and address religion and claims of religious exercise.

Professor Movsesian considers whether such people should be considered protected by the First Amendments free-exercise clause, and what such protection might mean. First Amendment case law is not very clear, even on such a basic question as what may constitute a “religion.” Some earlier cases seem to require a belief in God, others a definable organization with a tradition and teaching, and requires some sacrifice on behalf of its adherents. More recent cases seem to dispense with one or both of those requirements, so “spiritual” people may yet qualify for constitutional protection.

Movsesian states that there are some good reasons to consider nones as a separate religious category. As a constitutional matter, for example, we would not want the government deciding what constitutes a “religion.” If some psychic believes in a mysterious “flow” that guides her actions (a real case in Virginia), well, the government must respect that. Given the risk of religious conflict absent neutrality, removing “civil government from religious debate altogether seems a plausible way to eliminate such episodes and allow people of different religions to live together peaceably.”

However, Movsesian recognizes that there are thorny issues if we consider the nones as a separate religious group. For one thing, how would we define them? They are a varied group with differing degrees of belief and sincerity. We could potentially have a nation with millions of religions, each seeking exemptions from all kinds of laws or requirements. Such a chaotic situation would make an ordered political process (the argument goes) impossible.

The most significant argument against recognizing nones, perhaps, is what Movsesian characterizes as the Tocquevillian objection. Tocqueville identified individualism as the abiding threat to a mass democratic society. And this was not merely a political individualism. Tocqueville saw that a democratic society is constantly tempted toward a kind of pantheism. In breaking down all distinctions among citizens, the pressure of equality also breaks down distinctions between the divine and the human. Each person can become a god unto himself.

To counteract this leveling tendency, Tocqueville pointed to the profusion of civil and other associations American formed including churches. This stemmed the force of a democratic equality and also helped individuals contribute to the community. In this view, however, religion is more than just an individual interpretation of “flow” without a community or authoritative guides to behavior.

           UNDER . . . whatever

To recognize such collections of ideas or sentiment as a “religion” not only destroys the commonly understood use of the word, it also does not fulfill the function Tocqueville found so important.  Because, as it happens, these “nones,” despite their loud presence in the media and elite institutions, do not contribute as much to society as do established religious communities.

The spiritual but not religious people contribute less to charity, whether religious or secular causes, than do traditionally religious people, and are less involved in local political or cultural institutions: “Nones are the quintessential religious loners; indeed, rejection of religious organizations is their most salient characteristic. They are precisely the sort of isolated individualists that Tocqueville feared would be uninterested in community and unable to stand up to centralized authority.”

Movsesian also articulates the ancillary or secondary benefits religious communities have as a way of persuading the secular Left of the value of religion and religious community. Even if secular elites no longer believe (or even think it reasonable to believe) that religious tenets are true, perhaps they can be convinced to protect religion because of these other benefits to community and civic life.

But this may not work. Contemporary liberalism expresses hostility toward religion, which by its every existence is seen as a bulwark against encroachments by the state and as a separate center of values and social support. Arguing that religion has these Tocquevillian advantages may simply confirm liberals in their prejudices.

There is a further, perhaps counterintuitive development, however. As some leftist thinkers, such as the late Ronald Dworkin, have argued, religion can mean anything. Catholicism is the same as being a Klingon, or Orthodox Judaism is the same kind of thing as declaring yourself a follower of the ways of the Jedi. On this view, what matters most is that the individual belief system of the person is sincerely held, which the state cannot question. 

This might seem to some a boon for traditional believers, but that would be a mistake. Dworkin and others take this view and use it to argue for a maximalist state, with no allowance for religious exceptions. If everyone is religious, general laws must apply to everyone.

Moreover, this elision between religion and merely being “spiritual” helps the state by a form of moral equivalence. All due respect to those following the Jedi Knight code, but those people do not form a threat to the state, nor do Wiccans, Klingons, or the rest. They are still Tocquevillian individualists, even though they are groping for a transcendental reality. 

In looking at the “nones,” Professor Movsesian’s paper is prescient about where religious jurisprudence may be headed, and the dangers it may pose to traditional religious belief.

[Click here to read Mark Movsesian’s Defining Religion in American Law: Psychic Sophie and the Rise of the Nones]

Gerald J. Russello
is Editor of The University Bookman (
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

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Comments (10)Add Comment
written by Gian, April 03, 2014
Religion has intrinsic and irreducible communal aspects and is not satisfactorily analyzed in terms of individual rights.

I would even say that the modern American conservatism, in over-emphasizing the individual rights, has lost sight of the ancient, pre-Enlightenment insight that the society or the polis, the family and the individual
are the three irreducible levels of human social organization.

Treating the individual as basic and polis as deriving from the collections of individuals is the enterprise of the modern political theory, Hobbes, Locke etc. This procedure inevitably produces absurdity and paradoxes such as Dworkin argument given above.

True conservative argument, moreover, recognizes the particularity of the polis. That is, the Catholic Church having a history as a religion, but the Klignon does not.
written by Michael Paterson-Seymour, April 03, 2014
The real threat to religious freedom was long ago pointed out by Lord Acton: “Civil and religious liberty are so commonly associated in people’s mouths, and are so rare in fact, that their definition is evidently as little understood as the principle of their connection. The point at which they unite, the common root from which they derive their sustenance, is the right of self-government. The modern theory, which has swept away every authority except that of the State, and has made the sovereign power irresistible by multiplying those who share it, is the enemy of that common freedom in which religious freedom is included. It condemns, as a State within the State, every inner group and community, class or corporation, administering its own affairs; and, by proclaiming the abolition of privileges, it emancipates the subjects of every such authority in order to transfer them exclusively to its own. It recognises liberty only in the individual, because it is only in the individual that liberty can be separated from authority, and the right of conditional obedience deprived of the security of a limited command. Under its sway, therefore, every man may profess his own religion more or less freely; but his religion is not free to administer its own laws. In other words, religious profession is free, but Church government is controlled. And where ecclesiastical authority is restricted, religious liberty is virtually denied.”
written by Manfred, April 03, 2014
The Church created millions of nones itself with the 2nd Vat. Council and the "Spirit" which followed. Once the Church declared that the two thousand year Traditional Church was no longer valid, people felt free to "follow their own consciences". Whence, chaos. The constant theme in the Church during the 1960s was the Church would allow contraception, and de facto, It did! Most American catholics in my experience have declared they will no longer have confidence in obeying the Church again on any subject. As Catholicism recedes, a void is left which "nones" and others will fill. It is all part of God's punishment of us. It is going to get worse.
written by william manley, April 03, 2014
Perhaps someone can help me here. I have heard the expression "I'm not religious, but I am spiritual" many times over the past ten years. What exactly does this mean? I can't imagine being spiritual without being religious. I can however, imagine being religious without being spiritual (the Pharisees and Sadducees that Jesus railed against). Any help on this issue would be greatly appreciated. Thanks.
written by cermak_rd, April 03, 2014
I don't think the nones should go into their own religious group, because as stated in the article, they have little in common with each other.

Nor do I believe their rights should be lessened because they aren't as good for society as others. That would open a nasty slippery slope. I guess then it would be OK to judge whether Christians are eligible for their civil rights only if they've given enough $ to their church or volunteered so many hours.

Furthermore, because Americans are inherently a people who believe in fairness will it be permissible to state that only people who follow one of the major world religions are eligible to receive 1rst Amendment rights. I think that would be the fastest way to get a leveling where it is decided that 1rst amendment rights have a lesser sphere than a wider one.

I could add that Christians can only blame themselves for the rise of the nones. It was and is your duty to evangelize isn't it?
written by Howard Kainz, April 03, 2014
@William Manley: Here's some examples of "spiritual without religion" from my own contacts: 1) a vegetarian relative, dedicated to "new ageism," in unity with the environment 2) a colleague embracing the non-religion, Buddhism and Buddhist meditation; 3)the former Provincial of the Jesuits in Wisconsin, and a spiritual director at Marquette, renouncing his priesthood in favor of belief in the "New Cosmology."
written by william manley, April 03, 2014
Thanks, Howard. All 3 examples sound quite esoteric.
written by Paul, April 03, 2014
@William Manley: My impression is they have a belief in a Creator which can be general in nature or be similar to God depending if they have a Judeo/Christian background or others believe in some kind of mystic Eastern idea of reincarnation. Usually they relate to other people according to the golden rule usually stated as karma. Most base their idea of morality on what they decide is right or wrong which is usually shaped by modern culture not biblical principles.
written by Sharon T., April 03, 2014
@William Manley: many who claim to be spiritual and not religious claim to believe in a higher power but tend to reject the formal structure of religion and any overarching authority that might be attached to it. It's often more of a "do it yourself" proposition.
written by william manley, April 04, 2014
@Sharon…I understand what you are saying but don't these people generally use the resources of religion (teachings and scriptures) to aid them in their quest?

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