Our quondam co-blogger and permanent friend Rick Garnett has a nice descriptive post at SCOTUSblog on the problem of the constitutional definition of “religion.” His use of quotes is intentional, acknowledging that whatever the thing turns out to be, the task is not to define religion, thank God, but merely to define what we might call “the thing going by the label ‘religion’ in the constitutional text and subject to the protections and/or strictures of that text.”
As Rick also notes, the broader question of what the constitutional term “religion” means is also separate from the question of what constitutes a religious denomination, which is subject to the constitutional rules that 1) government cannot discriminate between religious denominations, except where 2) a) the denominational preference is one Justice Scalia was unaware of and thus thought must be unimportant and b) everyone agrees to more or less ignore it.
With or without a non-flagrantly dishonest reckoning with Employment Division v. Smith and other prior cases, one should expect this to be a growth area, for good and bad reasons. As long as some versions of Free Exercise doctrine provide powerful rights against governmental burdens on religious exercise, courts will continue to rely on, and variously expand or contract, the doctrinal safety values or escape hatches around it. What to count as “religion” is one of them, along with more frequently used current vehicles such as what to count as a relevant burden, and possible future safety valves such as a revived and probably highly variable focus on the “public good.”
Defining “religion” will also be of increasing interest as scholars and courts continue to eschew interest-balancing in favor of more categorical and tradition- or history-based constitutional tests. Or, more accurately, it will be of increasing interest as they purport to do so, while smuggling balancing into their decisions or retaining enough interest-balancing-derived tests around the edges to make their decisions sensible and administrable. And reading “religion” narrowly will become an increasingly important and hotly pursued project for those who wish to ensure that the “toleration” owed to Jews and other second-class believers does not have to extend to anything really grody or politically damaging.
Needless to say, this excursus on what the future may hold goes beyond Rick’s piece, which is a brief but useful treatment of where we are now. With Rick, I would note that if anything is amazing, it is how far we have gotten without such a definition, especially given how many statutes and regulations use the term “religion” or provide religious exemptions. And with him, I would say, as his peroration does, “That the task of defining ‘religion’”’ is tricky – especially given our twin commitments to religious neutrality and respect for pluralism – cannot be an excuse for giving up on respecting and protecting whatever it is.” Quite right; I suppose I would add to this the importance of defining it for the right reasons and without ulterior motives.
A side note, since Rick also mentions the Religious Test Clause: I’m happy to join those who have criticized silly charges made against judicial nominee Rebbeca Taibleson (about whom I have no other opinion) based in part on some of her Jewish associations, as well as her daring to have a spouse with different political views. (I would add that the manner in which those charges were made, criticized, and/or withdrawn suggests just how far down some bizarre quasi-Soviet rabbit-hole the right-wing industrial complex has descended. It featured weird forms of omerta that apparently precluded an actual identification of the “particular religious group” that made the unfair charges–am I allowed to say that it was the American Family Association? Isn’t everyone else allowed to say it? is this still America?; careful efforts to distinguish wrong-but-acceptable from wrong-but-unacceptable charges; and then the apparent memory-holing of even the acceptable-but wrong charges, presumably because orders came down from the idolaters’ version of On High. I guess being a member in good standing of the post-conservative right-wing elite means never being afraid to deny that Jones, Aaronson, and Rutherford were anywhere near that Party function in New York.) But leave the Religious Test Clause out of it. It does important work. But it does not preclude even unfair and idiotic scrutiny and discussion of a nominee’s faith. In such matters, “dumb and unfair” questions should be rejected because they’re dumb and unfair, and contrary to our values, without dragging the Constitution into it. Although I doubt that “contrary to our values” will get you very far these days.