Religion and the Constitution

The definition of "religion. " If the provisions of the First Amendment relating to religion are to mean anything, courts are almost certainly going to have to define the term. But this will inevitably cause problems. If courts define the term broadly, to include a wide range of beliefs and activities, then many forms of regulation by the government will impair free exercise, and many activities by the government will establish religion. Likewise, if courts define the term narrowly, then, although the government's freedom to act will be greater, individual rights will be less secure.

Seeger-In United States v.Seeger (1965), the Court adopted a working definition in the course of interpreting a statute,  6(j) of the Universal Military Training and Service Act. This section exempted from combat persons who, because of their "religious training and belief," were conscientiously opposed to participation in war in any form. The statute went on to define "religious training and belief" as: an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal code.

Although Seeger described himself as agnostic, he also proclaimed a "belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed. " Preferring not to define religion so as to preclude Seeger from obtaining an exemption from the draft, the Supreme Court held that: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by God of those admittedly qualifying for the exemption comes within the statutory definition [of 6(j)].

Because the Court purported simply to be interpreting a statute, the holding in Seeger is technically not a rule of constitutional law. Moreover, blind application of the rule of Seeger in the constitutional context could be problematic, given its broad reach Welsh-Welsh v. United States (1970) presented this issue in even starker form, because (as the Court noted) "Welsh was far more insistent and explicit than Seeger in denying that his views were religious. " (880)

Arguably, the decisions in Seeger and Welsh were necessary to avoid even greater problems had the Court not defined religion broadly enough to encompass the claims at issue. Had the Court denied the exemption to Seeger and Welsh, it would have interpreted the act of Congress to provide a specific, extremely valuable benefit only to the overtly religious. In addition to transferring a burden (the burden of having to serve and perhaps suffer injury or death in combat) from the religious to the non-religious (in that someone would have to fight), such an interpretation might well have provoked criticism that Congress was establishing religion.

The Court avoided such issues by defining religion broadly enough to include the systems of belief presented by Seeger and Welsh. Query, however, whether this broad interpretation could thrive in other contexts. Contributions to organizations that qualify as religions may be deducted from gross income for purposes of taxation. Consequently, unless the government wants to collect no taxes, it must define "religion" in such a way as to exclude a large number of organizations.

Similarly, if "religion" is defined broadly enough to include any coherent system of values, public education becomes, arguably, an establishment of religion. See generally Smith v. Board of School Comm'rs (11th Cir. 1987) (involving a claim that the curriculum in a public school established "the religions of secularism, evolution, materialism," etc. ). Also relevant to the issue of how to define "religion" is Wisconsin v. Yoder. In this case, the Supreme Court required the State of Wisconsin to permit certain Amish parents to keep their children out of school after they had attained a certain age.

The Amish objected to education of these children on the ground that it would make them too worldly to succeed in the Amish way of life, which is religiously based. By way of dictum, the Court addressed the issue whether someone with a purely personal or philosophical attachment to a simple, rural way of life (like that of the Amish, but minus the religious aspect) could qualify for an exemption. The Court answered this question in the negative. Lower courts have struggled with the definition of religion, and, unlike the Supreme Court, at times they have had to define the term for purposes of constitutional analysis.

They have also had to define the term for purposes of other statutes. In some instances, these courts have engaged in a factor-based analysis, in which they look for certain characteristics of religion that some or most, but not all, religions share, such as belief in a higher power, a moral code, a comprehensive set of answers to certain profound questions, and attention to ritual. The theory and practice of religious establishments. As a matter of history, not all religious establishments were alike, but they had many similarities.

These included: (1) control by the civil government over the theological doctrine and personnel of the established church; (2) various levels of suppression or persecution of other faiths; (3) participation in the civil government by leaders of the established religion; (4) compelled attendance at services of the established faith; and (5) compelled financial support of that faith. -Civil justifications for religious establishments typically draw on the belief that some kind of religious system is necessary for the development of social responsibility and good citizenship.

- Theological justifications for religious establishments typically draw on the belief that God has chosen a particular faith, that propagation of that faith would please God, and that propagation or even toleration of other faiths would displease God. States in the newly formed United States that sought to retain a religious establishment, and that also sought to protect dissenters, such as Massachusetts, quickly discovered that serving both objectives arguably serves neither. To the extent Massachusetts tolerated or protected dissent, it undermined its ability to establish a religion.

Similarly, to the extent it actually protected its religious establishment, it seemed commensurately to impair the rights of dissenters. See generally Barnes v. First Parish in Falmouth (Mass. 1810). Massachusetts abolished its mild so-called "multiple establishment" in 1833. In sharp contrast to Massachusetts, Virginia abolished most vestiges of its religious establishment in 1786. This move was the culmination of a series of events in Virginia, beginning with Patrick Henry's attempt to revive mandatory tithes in favor of religion in general. The establishment Henry had in mind would have been a multiple establishment of sorts.

Nevertheless, it went down to defeat, in part due to the efforts of James Madison, who wrote his famous "Memorial and Remonstrance Against Religious Establishments" (1985) in response to Patrick Henry's proposal. Shortly after the defeat of this proposed legislation, Virginia enacted its famous "Bill for Establishing Religious Freedom" (1786). At the height of its separationist approach to interpreting the Establishment Clause, the Supreme Court drew heavily from Virginia's experiences and choices in the 1780s. Even today, the separationist wing of the Court draws heavily upon Madison's Memorial and Remonstrance.