I last wrote about religious freedom here. The post concerns how to define religion for purposes of religious freedom.
Basically, there are two ways to define religion: (1) a narrow, traditional sense in which religion means one of the world religions, which are concerned with worship of God or gods and/or following a certain way of life; or (2) a broad sense in which religion means what each person defines as the greatest good or ultimate concern and the lifestyle choices that follow from that. In the latter sense everyone has a religion; even those who are atheistic or anti-religious make a religion out of that.
The First Amendment to the U.S. Constitution lays out the two sides of religious freedom: negative freedom (freedom from) and positive freedom (freedom to). “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The incorporation doctrine applies this to the States, too. Consider these two sides in relation to the two definitions of religion.
(1) In the narrow sense of religion, government shall not promote or demote one traditional religion over another, shall not provide material support for traditional religious activities, and shall not interfere with traditional religious organizations and activities.
That protects religious organizations and leaders but what about adherents who want to apply their religion to their daily activities, their business, or other nominally secular actions? For example, can a business operate in accordance with religious principles if they conflict with generally applicable laws? The Supreme Court has said, No. So the narrow definition of religion causes problems for individuals.
(2) In the broad sense of religion, government shall not promote or demote one view of the greatest good or ultimate concern over another, shall not provide material support for anything that someone might consider religious, and shall not interfere with any organization or activity that people claim has religious significance for them.
Clearly, the broad sense of religion causes problems for government. For example, there are people who say it’s against their religion to pay taxes. Does that mean they get off free? Does anyone have a veto over laws based on something they claim is part of their religion? In the broad sense of religion, it seems so.
The Supreme Court has reacted against this stricture on government and affirmed the legitimacy of any government action that is not aimed against any particular religion. In 1990 an exemption was sought so members of a tribal religion could ingest peyote despite a ban on this drug. The Court denied this in terms that seemed to equate freedom of religion with freedom of speech: say anything you want, have any religious opinions, but the law applies to everyone (Employment Division v. Smith).
The problem is that the second definition is too broad and the first definition is too narrow. The way forward is to adopt a broader version of the narrow definition or a narrow version of the broad definition. What might this mean?
For example, it could mean that someone can’t just say, My religion forbids me to pay taxes. They need to demonstrate that this is part of a religious tradition or doctrine that is a central part of their life. This is similar to the process for obtaining conscientious objector status with the selective service system (military draft). It’s not easy to obtain this status, but it can be done by those with a strong case to be members of a pacifistic religion.
On the other hand, it should take more for the government to justify a law than merely that it advances a secular purpose. Many secular purposes these days are against the religious beliefs and practices of many people. The government should be required to show a compelling public interest in a law, or else carve out exceptions for religious objectors.
As government has grown, religious freedom has been under pressure to contract. This needs to change, without giving everyone a veto over laws they don’t like.