Finding Religion for the First Amendment

Abstract

Scholars and courts have struggled to come up with a definition of the term religion for the religion clauses. They continue to struggle because they believe that finding a definition will help provide a uniform test for determining whether something qualifies for protection under the Free Exercise Clause or raises concerns under the Establishment Clause. In this Article, I explain why their aspiration is misguided: providing a single definition of the term religion will not help us to apply the religion clauses. Scholars and judges focus primarily upon whether the religion clauses require a broad or a narrow definition of the term religion, whereas I will argue the focus should be upon when the religion clauses require a broad definition and when they require a narrow definition. Finding the proper focus helps to dissolve some long-standing problems regarding the religion clauses - the so-called tension between the clauses and the lack of a definition of the term religion in religion clause jurisprudence.

I argue that there is no single definition of the term religion as it occurs in ordinary English, at least not one that can help interpret and apply the religion clauses. The reason for this is simple: what qualifies as religion differs across differing legal contexts. A single definition will not work in all legal contexts, and thus, courts and scholars should stop attempting to provide a definition of the term "religion" that does.

By recognizing that what qualifies as religion varies as the legal context varies, I argue, we can see that the vast attention given to the so-called tension between the clauses is misplaced. Scholars should discontinue their search for ways to reduce tension that presupposes a unique definition of religion applies in all legal contexts. The better approach is to view the religion clauses as an extension of other clauses - Free Speech Clause, Equal Protection Clause, etc. - into the religious context. The religion clauses forbid certain types of favoritism as well as certain types of discrimination and exclusion. The difficult issue left unresolved is determining when the religion clauses forbid these things, but at least we should no longer be sidetracked by insignificant definitional problems and illusory puzzles.

Keywords: Establishment clause, free exercise clause, definition of religion, tension between the clauses, first amendment