What is the legal definition of a religion?
[NOTE: I noticed a recent discussion on the blog about what constitutes a religion. And so I thought it might be apropos to revisit a post from 2017 on that very topic.
Here it is.]
The question of how a religion is defined has come up many times on this blog in relation to Islam and terrorism. One question sometimes asked is why can’t any group simply declare itself to be a religion and have this be legally so, no matter what the group espouses. In other words, what are the limits of the term “religion”? Are there any criteria for a belief system and its practices to be considered a bona fide religion in the legal sense, with the protection of rights that go along with that designation?
There are many reasons why there is a legal interest in defining religion, because religions get many benefits under our legal system. But the law has traditionally had quite a bit of difficulty defining the term:
Complex interests may depend on the classification of a specific belief system or practice: tax exemptions; religious practices in prison or in the military (e.g., assembly for worship services; possession and sacramental use of various religious physical objects; access to religious literature; wearing of religious garments and jewelry; availability of food required by religious tenets); specific rights of workers, etc. The application of some constitutional and federal legal rules compels courts to delineate the boundaries of the concept of religion.
Legal theorists have made serious attempts to provide an adequate definition of what religion is for First Amendment purposes, and the Supreme Court’s and other federal courts’ efforts have been manifested in a string of cases in the context of the First Amendment as well as in statutory interpretation. These efforts should not be seen as entirely fruitless, but they have not provided a generally accepted legal definition of religion.
In other words, it ain’t easy.
It’s not easy to slog through that linked article, either. But the reader who does get through it should achieve some appreciation of how difficult a task it is to create a legal definition of religion. For example:
If one makes religion a subjective phenomenon determined purely by the individual, one comes into conflict with the social experience that religion generally requires social mediating structures on account of its communal aspects. Through these social structures, religion becomes valuable for the individual and the society integrates the individual’s concerns into social activities and a whole communal experience. The natural need for this integration calls for some social, objective standards of religion beyond the individual’s assertions.
The functional definition practically diminishes the boundaries between religious and nonreligious beliefs in a traditional sense. There remains no valid test for the content of a claimed religious belief and any belief may be seen as religious if it performs the required psychic function in the individual’s life. The merging of the religious and nonreligious spheres, in Sanderson’s view, is in itself unconstitutional (Sanderson 1007). Under a functional definition, no identifiable class could be delineated as the recipient of the protection although the Constitution distinguishes a class under the word “religion” from other classes and provides special protection for that class.
So let’s turn to everybody’s favorite institution, the IRS (especially timely right now). The IRS uses these criteria to define churches (and thus, “religion”) for tax purposes, requiring the presence of some but not all of the following:
Distinct legal existence
Recognized creed and form of worship
Definite and distinct ecclesiastical government
Formal code of doctrine and discipline
Distinct religious history
Membership not associated with any other church or denomination
Organization of ordained ministers
Ordained ministers selected after completing prescribed courses of study
Literature of its own
Established places of worship
Regular congregations
Regular religious services
Sunday schools for the religious instruction of the young
Schools for the preparation of its membersThe IRS generally uses a combination of these characteristics, together with other facts and circumstances, to determine whether an organization is considered a church for federal tax purposes
Not all religions meet all the criteria. For example, Quakers don’t have “ordained” ministers who have “completed prescribed courses of study.” They do have pastors, though, who have been “recorded“:
The peculiarly Quaker way of thinking about ministers comes more clearly into focus when one compares the Friends practice of ‘recording’ with the more common practice of ‘ordination.’ In many Christian denominations, one must first be ordained in order to become a minister. To be ordained, the potential minister must first meet a certain set of requirements. Usually, for example, there is a certain level of education one must attain. Some churches also exclude certain categories of people (e.g. women, divorced people, married people) from even entering the process.
As Friends, we reject the idea that some outward trait or experience could qualify someone to be a minister (remember what Fox said about Oxford and Cambridge!). Instead, we believe that anyone may be called to pastoral ministry. Rather than setting human-engineered prerequisites, Quakers have chosen simply to observe those who work as ministers. When it becomes clear that a person is indeed doing pastoral ministry, then we make an official record of what God seems to be doing. That person is “recorded” as a minister among Friends.
And yet I have little doubt that Quakers legally are considered members of a bona fide and protected religion, and their meeting houses are considered as churches in the eyes of the law.
There is something almost intuitive about the definition of a religion, and the societal and legal acceptance of that designation. It is not completely arbitrary. It is not based on just any set of beliefs. Custom and history are part of it. And although there is probably no one element that must always be present for a belief system to be defined as a religion, there are some behaviors that would result in members of a bona fide religion being excluded from protection and even prosecuted for acts that they say are in accord with their religion, but which have been designated by the legal system as criminal.
The classic example is suttee (or sati), a custom among Hindus in India that required a widow to commit suicide by throwing herself on her husband’s funeral pyre. Although initially accepted by the British occupiers, in time they came to criminalize it. Note, though, that the British didn’t declare Hinduism to not be a religion as a result; they demanded that the particular practice of suttee cease. Something similar has occurred in this country regarding Islam and female genital mutilation, a practice which is a federal crime in the US and is criminal under statutes in many states as well.
However, neither suttee nor FMG were or are basic tenets of their respective religions. Their presences in those religions may throw doubt among some people as to the definitions of Hinduism or Islam as religions or churches, but not among most people and not in the legal sense.
[NOTE II: You also might want to take a look at this post of mine from 2016.]
“We are a nation of laws, not of men,” however, “the Constitution is not a suicide pact.”
I think that RICO laws should be used to prosecute terrorist-supporting Islamic organizations; no Muslims should be allowed to enter our country, except temporarily, under strict supervision; and all Muslims who break our laws should be deported. This would cause an outcry, but diversity is not our strength, rather it brings adversity.
I think these measures would also cause a violent response, which would have to be responded to harshly, because the Muslim only respects the “strong horse.”
Someone mentioned Dr. Zudi Jasser on an earlier thread, as someone who is trying to “reform Islam.” I have heard him on the radio, speaking in a flat monotone. I don’t know that his efforts have had any effect. I don’t think Islam can be “reformed,” since it commands its followers to bring Jihad to all “infidels”, and make them submit or die.
I think those principles fit the definition,
its curious how Christianity and Judaism aren’t really deemed worthy of protection but Islam is,
Jasser wants to modernize the religion, but the purist islam the salafi current is
militant in it’s inclinations, even among the milder Sufism that is the basis of the Turkish
zysgy where the Sultan erdogan reigns,
of course, the old Gods are certainly being set up for adoration
A Hindu variant, or a Muslim, may not practice suttee or FMG, because they’re illegal. But he thinks it’s a good idea anyway.
What happens if an opportunity arises because, somehow, a law got changed?
Or if he goes to trial and there are Muslims on the jury who think those are fine ideas?
Rastafari is another Abrahamic Religion, but don’t know if this Abrahamic Religion is legal in America.
Not sure what happened to the Ethiopian Zion Coptic Church—it was big news in Miami years ago…
What thuckery.
Too many criteria means no criterion at all, and for a good reason: defining religion is like defining God.
Measure the Metagalaxy. Drain the Pacific Ocean. Extinguish the volcanoes of Iceland.
All of us have beliefs that are not subject to negotiation. Examples? “Life is better than death”. “Violence harms”. “It’s one’s duty to raise one’s children”. “Rap sucks”. “99.(9)% of free verse written in America isn’t real poetry”.
It’s nobody’s business how and where we picked them up.
We are entitled to our opinions, including the ones that forbid us do certain things, irrespectively of who shares them, or has historically shared them.
All real rights are negative rights, and all negative rights are real rights.
We shouldn’t have to bring our God into the room if we don’t want to bake a cake for a person we don’t like. Freedom of association means that everyone has a right to refuse and no one has the right to coerce. Freedom of association shall not be infringed. As long as it is, we are not a free country. Let’s work on that rather than on carving up special privileges and special exceptions to privileges.
A society that respects human preference needs no legal definition of religion. That’s it.
neither suttee nor FMG were or are basic tenets of their respective religions.
I wonder how one makes this determination for a religion to which one does not belong.
For example, the mainstream LDS church, the Mormons, would say polygamy is not a “basic tenet” of their religion: after all, they gave it up. But more than one group of Mormons broke with the mainstream LDS church because they did indeed consider polygamy a “basic tenet” of their religion and still practice it. The practice of the mainstream LDS church surely isn’t how we determine if this is so or not; if it is then we’re letting the government pick sides on theological questions….
I am sure there are Hindus and Muslims in the analogous position with respect to sati and female “circumcision”, who do indeed consider it a “basic tenet”.
@Karmi: Rastafarianism is perfectly legal in America and to my knowledge always has been. They are not allowed to break the drug laws, however. Likewise it’s perfectly legal in the US to worship Tlaloc but human sacrifice is still not legal.
Rastafarianism HAS been illegal in Jamaica, in that they did arrest people for being Rastafarian at one time, and this wasn’t over cannabis but about allegiance to the King. But the UK has an established religion, of course.
interesting fgm or khald is not in the Koran and it’s obliquely mentioned in the Hadith, it’s a pre-islamic custom, which seems as present in West Africa as the Middle East, as Elizabeth George noted in one of her more recent Lynley mysteries, set in Nigerian dominant NorthEast London
P.S. As of suttee, I don’t think any American jurisdiction criminalizes suicide per se.
Most have protocols in place aimed at preventing it, or resuscitating the perpetrator, but there is no criminal liability (like there was in Nazi Germany).
In other words, I have no objections against this particular custom as long as it does not involve coercion.
Religion is essentially a behavioral protocol or model under God, gods, mortal gods (e.g. political, expert), or personal attribution. Faith is a logical domain of trust. Liberal democracies invariably operate under the Pro-Choice religion (e.g. political congruence, human rites, Diversity) and Twilight faith (“penumbras and emanations”, In Stork They Trust).
LXE. Would be interesting to know how a widow refusing suttee is treated. The prospect might rise to coercion?
faith is the evidence of things not seen, I assume for all faith,
for reasons passing understanding they wI was showing life of brian, part of Python marathon, the film you could not make today in part because Python helped demolish most of the UK’s institutions, and there is the part about the crucifixion where he warbling about the ‘sunny side of life’ which is ironic in two senses, notably the fact that these overcredentialed cretins seem to have ignored Jesus’s message in the pursuit of wry chuckles, which was the redemption of humanity, without which England would not have stood for 1600 years, was Arthur indentifiably Christian, thats left for another day,
the parts aimed at Jews probably would pass muster today,
although probably that would be considered blasphemy by proxy, as the producers of the Noah film found out
I think the American consensus has been that groups may have what beliefs they wish to have, but certain behaviors which may be called for in those belief systems are prohibited here. So, sexual mutilation of little girls, wife-beating, honor killings, and actions which attempt to restrict the legal activities of other individuals or groups are not allowed. As a voter, I am allowed to use my own judgment about religious affiliations of candidates. I would need to know if a Muslim candidate fully accepts the American constitutional framework and would not seek to suppress or commit violence against non-Muslims.
LXE, there may have been Hindu widows who willingly went into the fire, but for the most part they did so drugged, and because a widow had no way to live once her husband was gone.
Nobody expects the
Abrahamic Religion!
Suicide and suttee now that’s an argument. Like addadicktome (and the other trendy butchery) and the age old FGM.
All religions are “unique” in the sense that they have a feature or two that isn’t shared by other religions, so denying that something is a religion is always problematic. Sure, if your religion is sitting around watching television, smoking pot and commenting on the sitcoms, you’ll have trouble convincing people that it’s an actual religion, but anything that’s been around for a millennium is going to qualify as a religion.
@Richard Aubrey
I think
@Kate
answered your question re: whether coercion is involved:
> because a widow had no way to live once her husband was gone
I’ve heard of many obsolete (or labeled-obsolete) customs in America, but in no single occasion I heard about one that would deny a widow her right to remarry, and as far as I understand inheritance laws, in most states she would be entitled to the husband’s estate automatically or next to automatically. Let alone other safety nets in existence.
As of suicide under drugs, it doesn’t seem to be a narrowly religious problem.
Ask Jim Morrison.
@Kate
> certain behaviors which may be called for in those belief systems are prohibited here
Exactly. My approach is as follows: if my belief system called me to a certain action prohibited under the secular legal framework, I would still commit it — and accept the punishment, knowing that my God would reward me a hundredfold. (Rest assured, no “honor killings”, but I would k111 anyone who abuses my wife without remorse, and I think the sentiment is more common than it’s typically admitted.)
However, if my belief system _prohibited_ me from a certain action, I would consider refraining from it an entitlement coming not from a particular belief system, but from a basic human right. I would still accept the punishment (e.g. from evading the draft if my religion forbids going to war), but I would consider it an injustice worth a remedy, and use every lawful way to fight back — not just for myself and my co-believers, but for every person born to be free. Which is, for every person, period.
Re: IRS, religion and Scientology
As it happens, the IRS withdrew Scientology’s religious tax emption in 1967. The IRS didn’t consider Scientology a religion, rather it was an organization operated for the benefit of L. Ron Hubbard and his family. Works for me.
Scientology launched an all-out counter-assault on the IRS. They filed more than 2000 lawsuits against the IRS and individual IRS agents. They even had Scientologists infiltrating the IRS to gather compromising information on IRS officials.
Scientology won. In 1993 the IRS recognized the Church of Scientology as a legitimate religion and restored tax-exempt status to Scientology and its affiliated entities.
The details of the agreement between the IRS and the Church of Scientology were kept confidential.
I’m not sure what the moral of this story is.
Colonial Hindu: “Burning widows is part of our culture.”
Colonial Brit: “Hanging men who burn widows is part of *our* culture!”
@huxley
> I’m not sure what the moral of this story is.
I think the moral is that there should be
(a) no corporate tax exemptions based on whether the government likes/endorses/approves of what the corporation is doing;
(b) no corporate “income” tax at all. If some taxation of added value is inevitable because the “democratic government” cannot sustain itself on border tariffs and postal fees alone, it suffices to have either a uniform personal income tax or a uniform federal sales tax. The latter is preferred.
Tax consumption, not investment. It’s that simple.
LXE:
I wouldn’t mind a rather large and libertarian re-visioning of the IRS’s mission.
However, I do appreciate the contribution Judeo-Christian religions have made to our country and its communities.
Does it make sense to favor those religions with tax policies? I’d say an argument can be made.
However, it gets muddy for any new-fangled, roll-your-own religion. Scientology is an egregious example.
@huxley
> Does it make sense to favor those religions with tax policies? I’d say an argument can be made.
Then make it.
As of myself, I’d gladly hug and bless everyone who recognizes Abraham as a prophet and a forefather, but my allegiance is to my own religion (Eastern Orthodox Christianity) and the United States of America (a secular common-cause).
According to Eastern Orthodox Fathers, God deliberately concealed Himself from direct observation so that faith in Him were a voluntary act. There was, a while ago, a Christian Empire, but it only existed because a polity of like-minded people agreed to believe in God together, so to say.
If the United States becomes such a polity one day, I wouldn’t mind; I just see no indications towards that, and my religious leaders (starting with St. Paul) believe that a secular Republic, or even (in St. Paul’s times) a pagan Republic, has its own value in the world’s history.
The problem with the Christian Roman Empire is that either you buy all of it in its entirety, or you don’t. If you don’t, the sacrifice you pay is of no value. It’s “tombstones of the prophets”.
If you want to keep some pagan customs, better live your pagan ways. It’s less damning than pretending you are Christian when you aren’t.
In addition, new/invented religions mean new challenges to our confession of faith, and that’s a good thing. It makes us 1 Peter 3:15.
That’s my take. I’d love to hear yours.
P.S. @huxley and may God bless you.
L
LXE
You make a point about what your hypothetical religion might demand of you.
Suppose the widow is aware that some in the community feel called to do an honor killing, irrespective of legal consequences.
Such things have happened, and either succeeded or failed in the attempt in European countries and here.
What the perp thinks will happen to him in the afterlife is not a factor in the widow’s decision. Or, perhaps it is extraordinarily relevant. Rewarded a hundred-fold? What wouldn’t somebody do for that?
xe