Pastor, Church & Law

Definition of “Religion” and “Religious”

§ 13.10

Key point 13-10. The courts have defined the terms “religion” and “religious” broadly.

Occasionally it is important to know how the courts have defined the term religion. The First Amendment expressly prohibits the “establishment of religion” and protects its free exercise; the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of an employee’s religion; the Internal Revenue Code and several state tax laws exempt certain religious organizations from taxation; and many other federal, state, and local laws and regulations use the term.

The term religion is not easily defined.91 See generally Boyan, Defining Religion in Operational and Institutional Terms, 116 U. Pa. L. Rev. 479 (1968); Choper, Defining “Religion” in the First Amendment, 1982 U. Ill. Law Rev. 579, Note, Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056 (1978).Early court decisions generally limited the term to belief in God. For example, in 1890, the Supreme Court observed that the term religion “has reference to one’s views of his relations to his Creator, and to the obligations they impose on reverence for his being and character, and of obedience to his will.”92 Davis v. Beason, 133 U.S. 333, 342 (1890).This view was articulated by numerous lower federal courts and state courts.93 See, e.g., Borchert v. City of Ranger, 42 F. Supp. 577 (N.D. Tex. 1941); Gabrielli v. Knickerbocker, 82 P.2d 391 (Cal. App. 1938); Sunday School Board of the Southern Baptist Convention v. McCue, 293 P.2d 234 (Kan. 1956); Nicholls v. Mayor of Lynn, 7 N.E.2d 577 (Mass. 1937); Taylor v. State, 11 So.2d 663 (Miss. 1943); Kolbeck v. Kramer, 202 A.2d 889 (N.J. Super. 1964); Drozda v. Bassos, 23 N.Y.S.2d 544 (1940).

The courts eventually interpreted the term religion much more broadly. In an early decision expressing the modern view, a prominent judge observed:

Religious belief arises from a sense of inadequacy of reason as a means of relating the individual to his fellow-men and to his universe. … It is a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets. … [Conscientious objection] may justly be regarded as a response of the individual to an inward mentor, call it a conscience or God, that is for many persons at the present time the equivalent of what has always been thought a religious impulse.94 United States v. Kauten, 133 F.2d 703, 708 (2nd Cir. 1943) (Judge Augustus Hand).

This broader definition was adopted by the Supreme Court in a series of rulings. In 1961, the Court observed that “religions” need not be based on a belief in the existence of God: “[N]either [a state nor the federal government] can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.”95 Torasco v. Watkins, 367 U.S. 488, 495 (1961). In Torasco, the Court ruled that a Maryland law requiring notaries public to take an oath professing their belief in God violated the First Amendment guaranty of freedom of religion.The Court added that “among religions in this country which do not teach what would generally be considered as a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”96 Id. at 495 n.11.

In two succeeding opinions, the Court defined the term religion in the context of section 6(j) of the Universal Military Training and Service Act of 1948, which exempts from combatant training and service in the armed forces persons who by reason of their religious training and belief are conscientiously opposed to participation in war in any form. The Act defines “religious training and belief” as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.” In United States v. Seeger,97 380 U.S. 163 (1965).the Court surprisingly interpreted this definition of “religious training and belief” to include a sincere and meaningful belief that “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holder we cannot say that one is `in relation to a Supreme Being’ and the other is not.”98 Id. at 166. This remarkable interpretation of the plain meaning of the Act apparently was based on the Court’s concern that any legislative preference of believers over nonbelievers would be unconstitutional. It is also interesting to note that the Court relied on the writings of several theologians in reaching its decision, including most notably Paul Tillich. P. Tillich, Dynamics of Faith 1-2 (1958).

In Welsh v. United States,99 398 U.S. 333 (1970).the Court equated purely moral or ethical convictions with “religious” belief:

Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality —a God — who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by … God” in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a “religious” conscientious objector exemption … as is someone who derives his conscientious opposition to war from traditional religious convictions.100 Id. at 340.

Lower federal courts and state courts have applied this more liberal definition of religion in several cases. To illustrate, one court, in concluding that the Science of Creative Intelligence (Transcendental Meditation) is a religion, observed that “[c]oncepts concerning God or a supreme being do not shed their religiosity merely because they are presented as a philosophy or a science.”101 Malnak v. Yogi, 440 F. Supp. 1284, 1322 (D.N.J. 1977).The court also observed that such elements as “clergy, places of worship or explicit moral code” need not be present for a practice or belief to constitute a religion. 102 Id. at 1326. See also Stevens v. Berger, 428 F. Supp. 896, 900 (E.D.N.Y. 1977) (“neither trappings of robes, nor temples of stone, nor a fixed liturgy, nor an extensive literature or history is required to meet the test of beliefs cognizable under the Constitution as religious, and one person’s religious beliefs held for one day are presumptively entitled to the same protection as views of millions which have been shared for thousands of years”).The court concluded that “a belief in the existence of a pure, perfect, infinite, and unmanifest field of life” constitutes a religious belief.103 Id. at 1324.

Similarly, other courts have found the following beliefs and practices to be religious: witchcraft;104 Dettmer v. Landon, 799 F.2d 929 (4th Cir. 1986).pantheistic beliefs of parents upon which they based their opposition to mandatory inoculations of their children;105 Sherr v. Northport-East Northport Union Free School District, 672 F. Supp. 81 (E.D.N.Y. 1987).the Black Muslim faith;106 Banks v. Havener, 234 F. Supp. 27 (E.D. Va. 1964).Krishna Consciousness;107 International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430 (2nd Cir. 1981).the Salvation Army;108 McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972).all aspects of religious observance and practice, as well as belief, whether or not they are acceptable to others;109 Stormans, Inc. v. Selecky, 524 F.Supp.2d 1245 (W.D. Wash. 2007).atheism;110 Kaufman v. McCaughtry, 422 F.Supp.2d 1016 (W.D. Wis. 2006).Alcoholics Anonymous;111 DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397 (2nd Cir. 2001).and the principle of supremacy of conscience.112 O’Brien v. City of Springfield, 319 F.Supp.2d 90 (D. Mass. 2003).

The concept of religion does have limits. The courts have concluded that the following beliefs and practices are not religious:

  • a federal law that prohibits the use of federal funds for nontherapeutic abortions;113 Woe v. Califano, 460 F. Supp. 234 (D.C. Ohio 1978).
  • beliefs and practices that tend to mock established institutions and that are obviously shams and absurdities and whose members are patently devoid of religious sincerity;114 Theriault v. Silber, 495 F.2d 390 (5th Cir. 1974).
  • refusal to accept a Social Security number as a precondition to the receipt of government aid;115 Callahan v. Woods, 479 F. Supp. 621 (D.C. Cal. 1979). But cf. Stevens v. Berger, 428 F. Supp. 896 (S.D.N.Y. 1977).
  • the use of marijuana by an individual who claimed that marijuana “was the fire with which baptisms were conducted by John the Baptist”;116 State v. Brashear, 593 P.2d 63 (N.M. 1979). But cf. People v. Woody, 40 Cal. Rptr. 69 (1964) (use of peyote by members of the Native American Church held to be a “religious” practice).
  • the consumption of marijuana by an individual who claimed that it extended and intensified his “ability to engage in meditative communication with the Supreme Being, to attain spiritual peace through union with God the Father and to search out the ultimate meaning of life and nature”;117 People v. Collins, 78 Cal. Rptr. 151 (1969).
  • the consumption of cat food by an individual who claimed that the food was “contributing significantly to [his] state of well-being”;118 Brown v. Pena, 441 F. Supp. 1382 (D.C. Fla. 1977).
  • the sale of golden eagle feathers by an Indian in violation of the Bald Eagle Protection Act;119 United States v. Top Sky, 547 F.2d 486 (9th Cir. 1976).
  • deeply rooted convictions of Indian heritage;120 Matter of McMillan, 226 S.E.2d 693 (N.C. 1976).
  • the promotion of a homosexual life-style;121 Church of the Chosen People v. United States, 548 F. Supp. 1247 (D.C. Minn. 1982).
  • racist and anti-Semitic ideology;122 Bellamy v. Mason’s Stores, Inc., 368 F. Supp. 1025 (E.D. Va. 1973).
  • publishing and distributing the Bible by an organization without any church affiliation;123 American Bible Society v. Lewisohn, 386 N.Y.S.2d 49 (1976).
  • a foundation engaged in the dissemination of religious and philosophical teachings of a Swedish theologian and philosopher;124 Swedenborg Foundation, Inc. v. Lewisohn, 386 N.Y.S.2d 54 (1976).
  • a church that denied the existence of God and totally relied on human reason; and125 Religious Society of Families v. Assessor, 343 N.Y.S.2d 159 (1973).
  • a foster home controlled by two presbyteries.126 N.L.R.B. v. Kemmerer Village, Inc., 907 F.2d 661 (7th Cir. 1990).

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