Religion and the law is a complex and rich subject. With it’s prominence in the First Amendment it is a surprise, at least to me, that the subject is not litigated more because the case law is far from certain.
This past week Alabama Supreme Court Chief Justice Roy Moore argued in a Pastor for Life Luncheon, that the First Amendment should only apply to Christians. “They can’t define it they way Mason, Madison and even the United States Supreme Court defined it: ‘the duties we owe to the Creator in the manner of discharging it.’ They don’t want to do that because then it acknowledges the Creator is God.'” Moore said at 1:35 of the video, while referring to the case Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003). Moore’s argument is since only Christianity says their God is the Creator, then Christianity should be the only recognized religion. In his speech, Moore is frustrated with American courts for not defining religion. “In the law, it isn’t just politically correct [to define what religion is] because we have been divorced from God for so many years.” Moore argued at 2:35 of the video.
Previously, I have analyzed the Free Exercise of Religion, here, here and here. However, it is still unclear what is a religion in a legal context. In spite of Chief Justice Moore’s wishes, the Supreme Court of the United States have provided First Amendment protections for religions of various sizes, ideologies, and dates when they were established in the United States (some were established at the founding of our nation, others were established later).
I think it is a fair comment that religions are as vast and different as the people on the earth. Furthermore, our beliefs, including religious beliefs change by time and because of technological advances. Given that the First Amendment protects religious establishments and exercise of religion, defining what is or is not a religious can be a daunting task.
Few would quarrel, we think, with the proposition that in no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man’s predicament in life, in death or in final judgment and retribution.
— United States v. Seeger, 380 U.S. 163, 174 (1965).
Defining a religion is tough stuff. So how have the courts looked at it over the years?
There are different tests courts have used to define a religion. In this first part of a series, I will look at the truly held belief test and its origins.
Truly Held Belief Test
United States v. Macintosh, 283 U.S. 605 (1931).
Mr. Macintosh, a Canadian citizen, petitioned for naturalization to the United States. The only problem with the petition was Macintosh would not promise in advance to bear arms in defense of the United States unless he believed the war to be “morally justified.” An implied part of being fit for citizenship at the time was “willing to support the government in time of war, as well as in time of peace, and to assist in the defense of the country, not to the extent or in the manner that he may choose, but to such extent and in such manner as he lawfully may be required to do.” United States v. Macintosh, 283 U.S. 605, 617 (1931).
The majority held Macintosh’s belief’s were not enough to overcome the legislative and judicial scrutiny of being a naturalized citizen. The dissent said Macintosh’s “first allegiance was to the will of his God.” Id. at 629 (Hughes, C.J. dissenting). The dissent said that one’s freedom of conscience should be taken into account of such implied promises. “When one’s belief collides with the power of the State, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the State has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.” Id. at 633-34 (1931) (Hughes, C.J. dissenting).
While the dissent was never binding law, it persuaded other Judges and Justices found it persuasive and used it in future opinions.
Berman v. United States, 156 F. 2d 377 (9th Cir. 1946).
Herman Berman registered for the Selective Service and Training Act of 1940. Because of the registration he was made available for immediate duty and ordered to an induction center to join the armed forces. He refused induction and was charged and convicted criminally of refusing to obey a board order. Berman appealed the decision and sentence partly on religious grounds.
The Selective Service and Training Act stated: “Nothing contained in this Act shall be construed to require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” Id. at 379. Berman objected to the Board’s interpretation of the clause because in his opinion the phrase “of religious training and belief” is limited to those who conscientiously opposed to war as a belief related more or less definitely to deity.
Thus, the issue before the Court is does religious training or belief require a deity?
Berman claimed that his Socialist beliefs should disqualify him from service. In the defendant’s view the Socialist Party strove for the betterment of mankind and war contrary to that view. It is important to note neither the prosecution, nor either court questioned Berman’s beliefs. It was noted with thorough documentation the defendant held his views publicly for many years prior registering for the Selective Service and Training Act.
The Government claimed that even though he held sincere views, sincere beliefs are not enough to constitute a religious belief.
The Court of Appeals agreed with the Government. “It would be quite ridiculous to argue that the use of the word ’religion’ could have been understood by the authors of this part of our
national charter or by those having to do with its adoption as meaning to be inclusive of morals or of devotion to human welfare or of government.” Id. at 380. The Court drew a line between moral beliefs and religious beliefs. “The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.” Berman v. United States, 156 F. 2d 377, 381 (9th Cir. 1946) (quoting United States v. Macintosh, 283 U.S. 605, 633-34 (1931) (Hughes, C.J. dissenting).
The Berman court basically said the difference between a belief and a religious belief is the involvement in a higher power in that belief.
United States v. Seeger, 380 U.S. 163 (1965).
Three cases are combined together objectors of the Universal Military Training and Service Act in Seeger. The Act exempts persons from military duty “religious training and belief which Congress has defined as ‘belief in a relation to a Supreme Being involving duties superior to those arising from any human relation.” Id. at 173 (internal quotation marks omitted). The definition disallows persons who want to be exempt for economic, sociological, personal, political reasons (Congress may have been specific because of the Berman case, supra).
The Court noted when amended the Universal Military Training and Service Act in 1940, Congress used the words form Chief Justice Hughes’ dissent in Macintosh. Id. at 175.When Congress made the changes it replaced ‘God’ with ‘Supreme Being’ it likely broadened the religious protections, especially the legislative body chose not to define the phrase Supreme Being. The Court held the change to the statute constituted an “ever-broadening understanding of the modern religious community.” Id. at 180. The Court consults several leading religious resources to provide support to its view.
With an ‘ever-broadening’ sense of religion, and with religion as already a terribly difficult topic to define (see blockquote from Seeger in the introduction to this blog post), the Court draws up a test for religion. “[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption? This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets.” Id. at 184. The Court reasoned that anyone is allowed to believe in anything. Furthermore because of the nature of religion proving a belief is impossible. The Court made the assertion: “while the ‘truth’ of a belief is not open to question, there remains the significant question whether it is ‘truly held.’” Id. at 185.
There is some debate about whether the Seeger Court overstepped its judicial bounds with its interpretation of ‘Supreme Being.’ Putting that discussion to the side, it is important to note each court care to say that religion is ever evolving. That point can be evidenced in the evolution of the opinions on the Universal Military Training and Service Act. Also, it is important to remember the Court was not directly ruling on the First Amendment, but via the congressionally created exception for the statute. The “language appears, however, in a congressional enactment; it is not a phrase of the Constitution, like ‘religion’ or ‘speech,’ which this Court is freer to construe in light of evolving needs and circumstances.” Welsh v. United States, 398 U.S. 333 (1970) (Harlan, J., concurring).
If anything, this line of cases shows difficult it is for judges to determine what is a truly held belief in a religious sense. Courts do not want to be in the position of defining what a definition is, not only because of the sheer complexity of the task, but because the definition changes with time. They do not want to update their definition of religion every generation to meet society’s present needs. On the other hand, in the cases of military service, courts do not want to permit abuse of the system by allowing people who have insincere beliefs to game the system.
Truly held beliefs is one way to judge religious beliefs.