The New Neo

[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 members

The 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.]