Wrestling with Religion in Law

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

John Olusegun Adenitire

I

In the last chapter of Wrestling with Diversity, Sandy Levinson and Rachel Levinson ask ‘why should practices rooted in religious belief be treated differently than "cultural norms," whether for good (…) or potentially even for ill (…)?’. Their conclusion can be fairly summarised as stating that religion and culture are not really distinguishable so that there is no persuasive reason for treating the former differently from the latter. 

Never mind that the law, including the US Federal Constitution, places special privileges (Free Exercise) and disadvantages (Non Establishment), over things that judges label religious rather than cultural. But, in line with Sandy’s encouragement not to idolise the US Constitution, they prod us to think beyond this brute fact which is only of interest to positivist lawyers. Accordingly, they argue that as a matter of first principle, it is wrong for state officials to treat worse parents who refuse to treat their child with effective Western medicine because they favour ineffective traditional Chinese medicine compared to parents who favour ineffective Christian Science prayer. 

My view is that the sentiment behind, and many of the arguments of the chapter, are correct. Ineffective traditional Chinese medicine and ineffective Christian Science prayer should be equally penalised if they lead to the same amount of harm for a child. Yet, as the chapter in Wrestling with Diversity attests to, in the United States the latter is treated with more magnanimity by state officials because it is considered religious. The Free Exercise Clause, Federal and State level Freedom of Restoration Acts, as well as some statutes protecting faith healing would cut the Christian Science parents some slack; but not the parents who prefer traditional Chinese medicine. Surely, this state of affairs is deeply unfair, especially if you agree with Sandy and Rachel that religion and culture are not easily distinguishable either in theory or in application. 

I agree with this view. Yet, the argument in that chapter seems to me to concede more than it is due. The issue is not that ineffective Christian Science prayer and ineffective traditional Chinese medicine should be treated equally because religion and culture are too similar. The issue for me is that the chapter concedes in the first place that there is something in the world that the law should recognise as religion, even though, as it turns out, it is difficult to differentiate from culture. That concession should not be made: the law should not recognise in the first place the category of religion for reasons of conceptual clarity and fairness. Let me explain.

II

US courts have been struggling to come up with a defensible definition of religion. In 1889 SCOTUS defined religion in Davis v Beason, making reference to Madison, as follows: ‘The term “religion” has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will’. About 70 years later, SCOTUS moved away from this theistic definition in Torcaso v Watkins where it held that the Establishment Clause prohibits government from ‘aid[ing] those religions based on a belief in the existence of God as against those religions founded on different beliefs’. In Welsh SCOTUS declared a pacifist who explicitly identified as non-religious as nevertheless religious because his pacifism ‘occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons’. In some district courts, judges not persuaded by this functionalist definition of religion (i.e., ‘anything is religious if it functions as a traditional religion’) have tried to come up with laundry-lists to specify what counts as religious. The Third Circuit in Africa, for example, has defined religion as follows:

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.

I mention all these well-known cases to legal scholars because they show that judges have been wrestling with each other to come up with defensible views of what sets the religious apart from the non-religious. The mistake, however, is to presuppose that such a defensible distinction exists. My view is that identifying a particular tradition as religious, inside and outside of the law, relies on certain ideological assumptions. Nowadays, in the cultural West, we commonly identify religion as a belief system, usually one that has to do with divinities, or that in any event has to do with (to take the first criteria in Africa as paradigmatic) ‘fundamental and ultimate questions’. But this understanding of religion as a belief system is a contingent understanding in terms of both time and space. In the cultural West, for example, religion used to be understood not as a belief system but instead as a virtue related to justice. Thomas Aquinas famously argued that religion is the virtue of giving to God what was due to him, i.e., worship. Because religion was a virtue, and because it was within the competence of the state to inculcate virtue to its subjects, according to Aquinas it was proper for the state to compel its subjects to worship the Christian deity. 

The idea of religion as a virtue is lost to Western courts and scholars. And so it should be. This is because the ideological assumptions that lead to endorsing this virtue-based understanding of religion are contrary to the dominant Western ideology which is liberalism. Liberalism says, among other things, that individuals should be free to develop their own conception of the good life, that individuals have certain rights against the state, and that the legitimacy of the state depends on individual consent and/or respect for individual rights. Understanding religion in the same way as Aquinas violates several of these ideological commitments. Most explicitly, it violates the liberal commitment that individuals can choose their own way of life and have rights against being forced to worship this or that deity. On the other hand, understanding religion as a belief-system already puts it somewhat out of the reach of the state. The state does not yet have the technological means to compel beliefs. Sure, it can coerce the manifestation of certain beliefs by, for example, criminalising them. By doing this it incentives the holding of certain beliefs. It can also mount concerted campaigns to inculcate certain beliefs through state-controlled media or, more relevant to contemporary times, through social media. In either scenario, however, there is still a live possibility that individuals think for themselves and maintain the beliefs to which they are committed. 

The main point of the previous paragraph is that it is the ideology of liberalism that leads Western courts to categorise religion as a belief-system which has to do with deities, spirituality, or existential questions. Religion is not something with a fixed identity which does not change across time and space. Rather, our conceptualisation of religion, is dependent on the prevailing ideological commitments of our times. States not committed to liberalism will understand religion differently. For example, the Egyptian constitutional tradition, which is not committed to liberalism, understands religion as a matter of fixed personal identity. There are only three fixed identities (i.e., Islam, Christianity, and Judaism). A person is born into these identities and cannot normally change them. It is not possible for most members of the Muslim majority population to legally escape this categorisation, even when they have changed their belief-systems. If, as the argument indicates, religion is an unstable concept lacking a fixed identity across space and time, then it follows that we should not really encourage Western courts to place much emphasis on it. In fact, we would be better off without such an unstable concept. 

I do not wish to argue that courts and scholars categorise things as religious on an arbitrary basis. There are often non-capricious reasons to categorise things such as Christianity as a religion and things like human rights law as non-religious. I have argued in some of my work that the category of religion in Western courts serves the political function of keeping certain things that look like Christianity out of the jurisdiction of the state because doing otherwise would threaten civil peace. Religion, on this view, is an individual choice and not something which the state is in the business of enforcing. This is a reaction to Western history where Christianity, and things that looked like it, posed a threat to civil peace when states had jurisdiction to coerce adherence to them. People were persecuted because of their differing conceptions of e.g., the three-part personhood of the Christian deity or because of differing views on transubstantiation. On this approach Christianity is a religion because historically it created a threat to civil peace when it was a matter for the state to enforce. On the other hand, human rights law does not have the same long history of being an excuse for persecution (hopefully the contrary is true) so the state has no reason for categorising it as a thing that is outside of its jurisdiction. 

While it is true that definitions of religion are not arbitrary, they are nevertheless contingent. For example, while Christianity and things like it were historically a threat to civil peace when in the hands of the state, they were and are not uniquely so. Nationalism, fascism, communism, totalitarianism, Nazism, and many other –isms were and remain live threats to civil peace. This does not mean that they now need to be categorised as religions. This suggests that the non-arbitrary and contingent reason for categorising things like Christianity as religions in Western law is, after all, not a very convincing reason to keep differentiating between the religious and the non-religious. So I can legitimately remain sceptical of the role and value that religion plays in law.

III

Let me finish where I started. The last chapter of Wrestling with Diversity is correct in asserting that it is difficult to distinguish religion from culture. It is also correct in arguing that as a matter of first principle, it is unfair for state officials to penalise more parents who treat their children with ineffective traditional Chinese medicine compared to parents who favour ineffective Christian Science prayer. Where that chapter goes astray, in my view, is in presupposing that there is a line to be drawn between the religious and the non-religious in the first place. There is no persuasive line. Ineffective Chinese medicine and ineffective Christian Science both belong to what liberals call conceptions of the good life (even though they are both bad). Pace the chapter, it is not only that it is difficult to distinguish religion from culture. It is that religion, at least as a legal category, is an empty box which we populate as convenient. I think it is best for lawyers to forget that box entirely, even if the Federal Constitution and legislative history keep bringing it up. We should wrestle against those reminders. The gain is more conceptual tidiness and fairness towards competing conceptions of the good life. 

John Adenitire is a Strategic Lecturer in Law at Queen Mary, University of London. You can contact him at j.adenitire@qmul.ac.uk.