What Counts as “Religious” in Law?

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 Russello

Gerald J. Russello is a lawyer and editor of The University Bookman (www.kirkcenter.org)