Much like a committee considering the selection of teams for a tournament, casual observers may grant a definitional “bye” to the easy cases—Buddhism, Christianity, Hinduism, Islam, and Judaism, and maybe a few others—but will, in much the same way that Justice Potter Stewart defined pornography, figure that for the rest, they’ll just “know it when they see it” (Jacobellis v. Ohio, 378 U.S. 184, at 197). Likely they would consider a Jew who wears a yarmulke as performing a religious act; likely they would consider a Pastafarian—that is, a member of the Church of the Flying Spaghetti Monster—who wears a colander as performing a ridiculous act. But state departments of motor vehicles across the country have permitted the latter in drivers’ license photos, even while still prohibiting as non-religious the wearing of baseball caps. Many would consider a wedding performed by a priest ordained in a seminary by the Catholic Church to be a legally binding religious act; likely many would consider a wedding performed by a priest ordained by the Universal Life Church (ULC) (via the U.S. Postal Service and paid for via PayPal) to be a farce. Yet some states recognize as legally binding those weddings performed by ULC clergy. And while controversial for some, many likely approve of the tax-exempt status of the United Methodist Church but would cringe at the tax-exempt status of the Temple of the Jedi Order—granted to them by the U.S. Internal Revenue Service almost 20 years ago.
We could play this game forever. But it is clear that the courts, government departments, lawyers, and the public are all working from different definitions of what is and what isn’t religion. This seems to be an odd situation where rights are at stake. And in situations that are now becoming more common—conflicts between individuals on the LGBTQ spectrum and members of tradition-based socio-theologically conservative religious communities—this seems to be particularly problematic.
Smith was not arguing that there are no ideas, actions, or things that people might call “religious,” or groups or movements that people might call “religions.” Rather, he was arguing that the very concept of “religion”—a term presumed to describe something that would encompass both the easy cases (like those listed above) and the more difficult cases (like those that we claim to know when we see)—was a construction of the Western intellectual tradition, created in part to address the things “other folks” did when they did things that were clearly not Christian (or, in fairness, not Muslim or Jewish, either). In other words, Smith might argue, there are elements of the human experience we might agree to call Christianity, or Islam, or Judaism (although, of course, the histories of just these three traditions suggest otherwise). But there is nothing we can point to and say: “that is religion, right there: that thing.” There are only things that are (to borrow from contemporary parlance) “religiony.”
This may explain why in any given society the concept of “religion” takes a shape that is most compatible with the dominant religious group in that culture, and all other “religiony” things are measured against that general concept. When U.S. Supreme Court Chief Justice Morrison Waite pointed out in 1878 that “The word ‘religion’ is not defined in the Constitution” (Reynolds v. United States, 98 U.S. 145, at 162), he may unintentionally have been pointing to the possibility that, while the Framers may have wished to leave open the definition to give it the greatest interpretive flexibility, they may also have sensed that they did not have to define a term for which there was general agreement.
It is not without reason that the relationship between religion and law in the United States came to be known as one of “church and state.” But even if one were to assign to the Framers the greatest latitude, the record is clear that the early Justices of the Supreme Court certainly understood and used the term as if its definition was unambiguous; the writings of Justice Story through the first half of the nineteenth century make this clear. The pattern established by Story of equating “religion” with Protestant Christianity continued well into the twentieth century, as can be seen in the decisions of Justices Field (Davis v. Beason, 133 U.S. 333, 1890), Bradley (Mormon Church v. United States, 136 U.S. 1, 1890), and Sutherland (who declared the nation to be “a Christian people”; United States v. MacIntosh, 283 U.S. 605, 1931, at 625). Even Justice Miller’s declaration that “The law knows no heresy” (Watson v. Jones, 80 U.S. 679, 1872, at 728) was delivered in the context of a dispute within one Protestant denomination.
Echoing in all of this is the minister’s statement in Henry Fielding’s 1749 work Tom Jones that “When I mention religion, I mean the Christian religion; and not only the Christian religion, but the Protestant religion; and not only the Protestant religion, but the Church of England.” Except for the final clause, this was the general position of the American public well into the twentieth century: “Americanization” meant Protestantization (of Native Americans in North America, of Catholics in the Philippines, and of others). Not until the 1940s was the Court willing to acknowledge a broader conceptualization of religion. It seems hardly coincidental that, with the dramatic transformation of the nation’s demographics brought on by the domestic and international migrations of peoples (and their religions) to the United States, the Court’s notions of religion expanded to include conscience (Cantwell v. Connecticut, 310 U.S. 296, 1940) and almost anything that was believed but which could not be proven (even if, in the words of Justice Robert H. Jackson, it seemed to be “a good deal of rubbish”; United States v. Ballard, 322 U.S. 78, 1944, Justice Jackson at 95). Shortly after Justice William Douglas declared that America’s institutions “presuppose a Supreme Being” (Zorach v. Clauson, 343 U.S. 306, 1952), the Court expanded what it considered religion to include non-theism (Torcaso v. Watkins, 367 U.S. 488, 1961) and beliefs parallel to those of more orthodox religion (United States v. Seeger, 380 U.S. 163, 1965).
In the middle decades of the century, those engaged in the academic study of religion were tracing the same trajectory as the Court. The writings of theologians like Paul Tillich (quoted in Seeger) and Harvey Cox in the 1960s—followed by more secular scholars like Robert Bellah (Habits of the Heart, 1985), Wade Clark Roof (A Generation of Seekers, 1993), and others—suggested that whatever “religion” is, it was not definable through Christian religious identity or even necessarily tied to institutions at all. An almost radical individualism was more often at the core of what scholars sought when they said they were investigating “religion.” For Bellah, it was “Sheilaism” (an individually-constructed belief in the self that he named for one of his interviewees); for Roof, it was the “seeker” (who, not tied to the religion of her birth, sought personal meaning wherever her life led her).
It is this the near total liberation of many (depending on age and geographic location, rural or urban) in the 1960s that seems intimately connected to the diminished authority of American society’s institutions by the end of the century. Not coincidentally, the numbers of those who consider themselves politically or religiously unaffiliated—or both—has grown sharply since then (for a great synthesis, see Ryan Burge, The Nones, 2021). It is not that people are less religious or not religious at all. It is that the measures of religion—Protestant Christianity in the nineteenth century, institutional affiliation in the twentieth—have come to be seen as inadequate at best or culturally biased at worst. Often self-identifying as “spiritual but not religious,” many today eschew institutional affiliation, identify with no particular religious denomination or tradition, and cobble together their own pastiche of meanings that work for them in their own lives. It is for this reason that many scholars of religion now prefer the concept of worldview—that understanding of the world that provides meaning, explanation, orientation, and motivation for behaviors—to the term “religion.”
It may be through the notion of a worldview that we should now understand the liberties provided by the Constitution, be they the ones guaranteeing religious free exercise, free speech, or individual liberty. The people who, through beliefs provided by sincerely held views of who they are in the world, cannot condone same-sex marriages, and the people who, through beliefs provided by sincerely held views of who they are in the world, cannot deny their own self-expressions and attractions, both function in the world through the prism of their own worldview. Both are deeply sincere, both are deeply grounded in the core of the person’s identity, and neither is universally agreed on. To say that one is “religious” and one is not only makes sense if the concept of “religion” takes a fairly specific form. This is not to say that either—or both—should not be taken seriously; the history of First and Fourteenth Amendment litigation make it clear that they should. And while this may not make the dilemma any easier to solve, it may put the parties engaged in the conflict on a playing field that is more honest and thus most just.
