Defining Religion (Part I)

12 06 2007

Filed under: Church and State, First Amendment, Politics, Christian worldview

This part 1 of two-part series that I want to post from Biblical Worldview Magazine and demonstrates much of what my blog is about. That is, contemporary courts’ interpretation of the First Amendment is not the intended ruling of the Founders.

Justice John Paul Stevens wrote in 1977 “The realm of religion is where knowledge leaves off, and where faith begins.” With this definition of religion, Justice Stevens confidently concluded that all tax subsidies to any school with a “religious mission” was an unconstitutional establishment of religion, in violation of the First and Fourteenth Amendments of the U.S. Constitution.

While Justice Stevens acknowledged that he had lifted his definition of religion from Clarence Darrow’s argument in the Scopes evolution case in Dayton, Tennessee in 1924, he did not explain why a 20th century atheist defense lawyer’s definition should control the meaning of a word contained in an 18th century document. Nor did Justice Stevens pause to consider whether Darrow’s evolutionary epistemology, the product of the Darwinian revolution of the mid-nineteenth century, should be superimposed upon a document written in a day when intelligent men took the Bible, including the book of Genesis, as the fountainhead of knowledge for the establishment of a nation. For Justice Stevens it was simply axiomatic that the language of the U.S. Constitution should be understood not as it was written, but as it might have been written by men “enlightened” by the most recent developments in science.

The Establishment Clause Definition

While no other justice joined Justice Stevens in his explicit endorsement of Darrow’s dichotomy between knowledge and faith, the High Court has continuously ruled as if Darrow were right. States may use tax money to support “science,” but not “religion,” defining the latter category as any teaching based upon the Bible as revelation from God.

Attempts to avoid this constitutional distinction between “science” and “religion” have led Christians to attempt to introduce the Genesis account of the origin of man and the universe as “creation science” or “intelligent design” and Hindu gurus to claim that transcendental meditation is the “science of creative intelligence.” But the Courts have “pierced this scientific veil,” uncovering the “true” religious purpose and nature of such efforts, and have held the the teaching of such viewpoints in the public schools to be an unconstitutional establishment of religion.

Given such rulings, it comes as no surprise that prayer is necessarily religious in purpose and effect, whereas the teaching of any subject based upon the scientific method is always assumed to be secular in purpose and effect. The former activities are banned as unconstitutional, whereas the latter are not only permitted, but promoted. Moreover, legislation may no longer be justified solely on the basis that it conforms with religious norms, but it must have an empirical foundation, lest it too be religious in purpose and effect and, therefore, unconstitutional.

The Free Exercise Definition

The Court has not, however, employed this secular/religious dichotomy as its working definition of religion in cases implicating the Free Exercise Clause. In Seeger v. U.S., Justice Thomas C. Clark concluded for a unanimous Court that “religious belief” included the faith of an agnostic so long as he held to beliefs that “occupy the same place as the belief in a traditional deity holds in the lives” of a traditional believer in God.

The Court borrowed this definition of religion from Paul Tillich, a 20th century theologian. Tillich claimed that any matter deemed of “ultimate concern” by any person was that person’s religious faith, even if it was not rooted in a belief in any notion of God or immanence as such.

Five years later, the Court found that this “ultimate concern” test was met even by a person who explicitly denied that his belief was “religious” or that he even believed in a Supreme Being. It was enough that the person held a principled, rather than an expedient, objection to obeying a specific law.

This subjective approach to defining religion has come to dominate the Court’s application of the Free Exercise Clause. In cases like Sherbert v. Verner and Wisconsin v. Yoder, the Court has developed a set of inquiries designed to insure that a person’s objection to a particular civil duty is rooted in norms thattranscend expedience.

Two Definitions or Only One

Can the Court justify defining religion one way for Establishment Clause cases, but another way for Free Exercise challenges? In his first edition of American Constitutional Law, Harvard professor Laurence Tribe attempted just that, only to abandon the effort as “dubious” in light of the constitutional text.12 But the dual definitional approach to the meaning of religion in the First Amendment is not just doubtful, it is impermissible.

Part 2 to follow tomorrow.

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